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REPORTS  OF  CASES 

ARGUED  AND  DETERMINED 


IN  THE 


COURT  OF  APPEALS 


OF 


MARYLAND. 

BY  RICHARD  W.  GILL,  Attorney  at  Law, 

un 
JOHN  JOHNSON,  Ckrk  of  the  Court  of  Appeals. 


CONTAINING  OASES  IN  1829. 


iffaltftnorn 

PUBLISHED  BY  FIELDING  LUCAS, 
LUCAS  AND  DEAVER,  PRINT. 
1830. 


X  U\ 


>*. 


. 


NAMES  OF  THE  JUDGES,  &c. 

DURING  THE  PERIOD  COMPRISED  IN  THIS  VOLUME. 

OF  THE  COURT  OF  APPEALS. 

Hon.  JOHN  BUCHANAN,  Chief  Judge. 
Hon.  RICHARD  TILGHMAN  EARLE,  Judge. 
Hon.  WILLIAM  BOND  MARTIN,  do. 

Hon.  JOHN  STEPHEN,  do. 

Hon.  STEVENSON  ARCHER,  do. 

Hon.  THOMAS  BEALE  DORSEY,  do. 

OF  THE  COURT  OF  CHANCERY. 
Hon.  THEODORICK  BLAND,  Chancellor. 

OF  THE  COUNTY  COURTS. 
FIRST  JUDICIAL  DISTRICT — St.  JMbrj/'s,  Charles  and  Prince  George's  Counties. 

Hon.  JOHN  STEPHEN,  Chief  Judge. 
Hon.  EDMUND  KEY,  Associate  Judge. 
Hon.  JOHN  ROUSBY  PLATER,  do. 

SECOND  JUDICIAL  DISTRICT— Ceci/,  Kent,  Qween  Anne's  and  Talbot  Counties. 
Hon.  RICHARD  TILGHMAN  EARLE,  Chief  Judge. 
Hon.  LEMUEL  PURNELL,  Associate  Judge. 
Hon.  PHILEMON  B.  HOPPER,       do. 

THIRD  JUDICIAL  DISTRICT — Culvert,  Anne  Arundel  and  Montgomery  Counties. 

Hon.  THOMAS  BEALE  DORSEY,  Chief  Judge. 
Hon.  CHARLES  J.  KILGOUR,  Associate  Judge. 
Hon.  THOMAS  H.  WILKINSON,  do. 

FOURTH    JUDICIAL  DISTRICT — Caroline,    Dorchester,    Somerset  and  Worcester 

Counties. 

Hon.  WILLIAM  BOND  MARTIN,  Chief  Judge. 
Hon.  ARA  SPENCE,  Associate  Judge. 
Hon.  WILLIAM  TINGLE,       do. 

FIFTH  JUDICIAL  DISTRICT — Frederick,  Washington  and  JUlegany  Counties. 

Hon.  JOHN  BUCHANAN,  Chief  Judge. 
Hon.  ABRAHAM  SHRIVER,  Associate  Judge. 
Hon.  THOMAS  BUCHANAN,  do. 

SIXTH  JUDICIAL  DISTRICT — Baltimore  and  Ilarford  Counties. 

Hon.  STEVENSON  ARCHER,  Chief  Judge. 
Hon.  CHARLES  W.  HANSON,  Associate  Judge. 
Hon.  THOMAS  KELL,  do. 

OF  BALTIMORE  CITY  COURT. 

Hon.  NICHOLAS  BRICE,  Chief  Judge. 

Hon.  WILLIAM  M'MECHEN,  Associate  Judge. 

Hon.  ALEXANDER  NISBET,  do. 

ATTORNEY  GENERAL. 
ROGER  B.  TANEY,  Esquire. 


NAMES  OF  THE  CASES 

REPORTED  IN  THIS  VOLUME. 


427 
Aldridge  and  Higdon  vs.  Turner,  **• 

Annan  and  State,  use  of  Oyster,      - 

324 
Barney,  et  MX.  vs.  Coale,  et  we. 

Belmear  and  Clark, 

Bowie,  use  of  Ladd,  et  at.  vs.  Duvall,    - 
Burch,  et  al.  vs.  Scott,          -  - 

Carnan  and  Williamson,  - 

Chamberlain  vs.  The  State,  use  of  Keller, 

Chappellear's  Ex'rsrs.  Harrison,          - 

Clarke  vs.  Belmear,  - 

Coale,  etux.vs.  Barney,  etux.  .... 

Crane  vs.  Meginnis, 

Danels  vs.  Taggart's  Adm'r,     - 

Donnell  and  Pawson's  Adm'rs, 

Donnell  vs.  Pawson's  Adm'rs,  • 

Dorsey  and  Edelen  and  Dorsey,        - 

Dugan  vs.  The  Mayor  and  City  Council  of  Baltimore, 

Duvall  and  Bowie,  use  of  Ladd,  etal.          - 

Dyer  vs.  Dorsey  and  Edelen,      • 

Edwards  and  Union  Bank  of  Maryland, 

Egerton,  et  al.  vs.  Reilly,  et  ux.  -  •  •  •  -385 

Egerton,  Ann,  and  Turner,  Adm'r  of  Wilder,  - 

Egerton  and  Same,  ...    434 

Gambrill  and  Warfield,        -  .  .         503 

Giraud's  Lessee  vs.  Hughes,  et  al.  -  -  -  "    ' 

Go  wan  vs.  Sumwalt,  .----- 

Hagthorp,  «t  we.  et  al.  vs.  Hook's^ Adm'rs,          • 

Halkewtone's  Ex'r  vs.  Hawkins,      -  -  r 

Harrison  and  Chappellear's  Ex'rs,  •  477 

Hawkins  and  Halkerstone's  Ex'r,     - 

Hays  vs.  Richardson,    -  ....  -    J 

Hook's  Adm'rs  and  Hagthorp,  et  we.  et  al.  •          •          -       27° 


vi  CONTENTS. 

Hoskins  vs.  Rhodes,       ---.-.-  266 

Hughes,  d  al.  and  Giraud's  Lessee,               -                        -  249 

Hughes 's  Adm'r  ta.  Mayor  and  City  Council  of  Baltimore,        •           -  480 

Kiersted  vs.  The  State,  use  of  Costello,                         ...  231 

Mactier  and  Wirgtnan's  Adm'rs,      -  -  -  -  -150 

Mayor  and  City  Council  of  Baltimore  vs.  Hughes's  Adm'r,         -           -  480 

Mayor  and  City  Council  of  Baltimore  and  Dugan,    ...  499 
Meginnis  and  Crane,     -           -            .            .            -            -            -463 

Miller,  Ex'r  of  Beard  vs.  Negro  Charles,     -                       -  390 

Morrow  ts.  The  State,  use  of  Israel,      -                       -                       -  231 

Negro  Charles  and  Miller,  Ex'r  of  Beard,          -           -           «    .  390 

Pawson's  Adm'rs  vs.  Donnell,           -            -            -            -            .  1 

Pawson's  Adm'rs  ate.  Donnell,    ......  1 

Poor,  et  ux.  et  al.  and  Tiernan,          ....  216 

Reilly,  et  ux.  and  Egcrton,  ct  al.             -            -            -            -            -  385 

Rhodes  and  Hoskins,             ......  266 

Richardson  and  Hays,  -  -  -  -  -  -366 

Scott,  et  al.  and  Burch,         ....  393 

State,  use  of  Costello  and  Kiersted,       -                                    -  231 

State,  use  of  Israel  and  Morrow,      -            -            •            -            -  231 

State,  use  of  Keiler  and  Chamberlain,               ....  231 

State,  use  of  Oyster  vs.  Annan,         .....  450 

Sumwalt  and  Gowan,    -------  511 

Taggart's  Adm'r  and  Danels,            -                                                  -  311 
Tiernan  vs.  Poor,  et  we.  et  aL     -            -            -            -            -            -216 

Turner  and  Aldridge  and  Higdon,    -            -                        -  427 

Turner,  Adm'r  of  Wilder  ts.  Ann  Egerton,        -                       -           -  430 

Same  vs.  Egerton,    -                                               ...  434 

Union  Bank  of  Maryland  vs.  Edwards,             ....  346 

Warfield  vs.  Gambrill,                                  -  503 
Williamson  vs.  Car  nan,               -            •            -           -           -            -184 

Wirgman's  Adm'r  vs.  Mactier,          .....  150 


COURT  OF  APPEALS 

OF 

MARYLAND. 


PAWSON'S  Adm'rs  vs.  DONNELL.    DONNELL  vs.  PAWSON'S 
Adm'rs. 

It  is  the  unquestionable  and  exclusive  right  of  the  Jury  to  decide  on  facts,  of 
the  existence  of  which,  contradictory  testimony  is  adduced. 

The  owner  of  a  ship  and  cargo  has  the  uncontrolled  power  of  breaking  up,  or 
changing  the  voyage. 

The  principles  which  should  govern  such  cases,  in  the  absence  of  all  commer- 
cial usage  on  th6  subject,  and  by  which  the  effect  of  its  action  on  the  con- 
tract of  the  ship  master  or  supercargo  with  the  ship  owner,  is  to  be  deter- 
mined, are 

1st.  If  by  the  exercise  of  this  privilege  a  special  injury  is  done  to  either,  the 
ship  owner  must  bear  the  loss,  and  make  a  reasonable  indemnity. 

2.  If  by  the  change  of  the  voyage,  the  captain  or  surpercargo  be  necessarily 
discharged  from  the  performance  of  all  the  duties,  for  which  a  remunera- 
tion has  been  stipulated,  his  claim  to  such  remuneration  is  thereby  extin- 

r,guishecl. 

3.  If  a  part  of  the  duties  have  been  executed,  then  such  a  proportion  of  the 
stipulated  compensation  should  be  allowed,  as  appears  just  on  comparing 
the  services  rendered,  with  those  which  remain  unperformed.     For  the  in- 
terpolated part  of  the  voyage,  the  usual  compensation  must  be  paid.     The 
parties  should  be  placed,  as  nearly  as  may  be,  in  the  same  condition  in 
which  they  would  have  stood,  had  a  previous  contract  for  the  voyage  aa 
changed,  been  entered  into  between  them.     To  all  the  customary  emolu- 
ments of  a  captain,  or  supercargo,  on  such  a  voyage,  are  those  officers  re- 
spectively entitled. 

A  ship  master,  who  was  also  the  supercargo,  was  directed  to  proceed  with 
his  ship  to  several  ports ;  his  compensation,  in  addition  to  monthly  wages, 

VOL.I— 1. 


2  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donnell.     Donncll  vs.  Pawson's  Adin'rs. — 1829. 

was  a  sum  certain,  with  a  privilege  of  bringing  home  a  specified  quantity 
of  merchandize  from  one  of  such  ports.  After  a  part  performance  of  the 
voyage,  the  ship  owner  changed  its  direction,  and  shortened  it ;  so  that 
the  port  at  which  the  privilege  might  have  been  exercised,  was  not  visited 
by  the  ship ;  before  the  termination  of  the  voyage,  the  ship  master  died. 
HELD  that  the  privilege  was  so  inseparably  connected  with  the  vessel's  des- 
tination to  the  particular  port,  at  which  it  was  to  have  been  exercised, 
that  upon  its  ceasing  to  be  one  of  the  termini  of  the  voyage,  the  privilege  of 
necessity  expired,  and  that  the  sum  certain  stipulated  to  be  paid  the  captain 
had  relation  to  the  voyage  as  originally  contemplated,  and  was  therefore 
subject  to  abatement,  in  the  discretion  of  the  Jury.  First,  for  the  altera- 
tion of  the  voyage,  if  they  believed,  that  the  ship  master's  labour  and  respon- 
sibility were  thereby  lightened  ;  and,  secondly,  for  that  portion  of  his  con- 
templated services,  which  were  lost  by  hia  death. 

The  misconduct  of  a  captain  or  supercargo,  which  produces  neither  injury 
nor  inconvenience  to  his  employer,  forms  no  defence  to  the  payment  of  his 
wages. 

The  consignees  selected  by  a  ship  master  or  supercargo  in  a  foreign  port,  ac- 
cording to  the  usual  course  of  trade,  and  in  good  faith,  are  so  far  the  agents 
of  the  owners  of  the  ship  and  cargo,  that  upon  the  death  of  the  captain  or 
supercargo,  his  representatives  are  not  responsible  for  the  consequences  of 
the  neglect  or  misconduct  of  such  consignees,  in  the  execution  of  their 
agency  after  his  death  not  imputable  to  instructions  given  in  the  life  of 
such  captain  or  supercargo. 

A  shipment  of  merchandize,  whose  exportation  is  prohibited,  made  by  a  super- 
cargo for  account  of  his  principal,  is  at  his  own  risk,  and  if  seized  and  con- 
demned at  the  place  of  exportation,  the  supercargo  must  bear  the  loss. 

The  acceptance  by  a  ship  owner  of  the  letters  and  invoices  sent  to  him  by  the 
consignees  of  his  ship  in  a  foreign  port,  is  not  such  a  ratification  of  the  acts 
of  those  agents,  as  would  throw  a  loss  arising  from  the  seizure  of  merchan- 
dize exported  against  the  laws  of  the  port  of  shipment  by  them,  for  his 
account,  upon  such  ship  owner. 

These  were  CROSS  APPEALS  from  Baltimore  County  CbHrt, 
from  a  judgment  rendered  in  an  action  of  Jlssumpsit  in  favour 
of  the  plaintiffs,  (the  appellants  in  the  first  and  appellee  in 
the  second  of  these  appeals)  against  the  defendant  (the  appellee 
in  the  first  and  appellant  in  the  second  of  these  appeals.)  The 
declaration  contained  two  counts — One  for  work  and  labour, 
&c.  goods,  &c.  sold  and  delivered,  money  lent,  and  for  money 
had  and  received;  and  the  other  on  an  insimul  computassentj 
between  the  defendant  and  the  plaintiff's  intestate.  The  defen- 
dant pleaded  non  assumpiit,  and  issue  was  joined.  It  was 


OF  MARYLAND. 


Pawson's  Adm'rsiw.  Donnell.    Donnell  vs.  Pawson's  Adm'rs — 1829. 

agreed  between  the  parties,  "that  the  defendant  may  give  in 
evidence  under  his  plea,  any  items  of  account  which  he  may 
have  in  bar  of  the  plaintiff's  claim,  and  which  he  might  legally 
set  off,  or  give  in  evidence,  had  he  filed  an  account  in  bar  or 
given  regular  notice  of  set  off" — Also,  "that  all  errors  in  the 
pleadings  be  mutually  released,  and  that  each  party  shall  be  at 
liberty  to  give  any  special  matter  in  evidence  under  the  issue 
joined."  Also,  "that  by  the  shipping  articles  entered  into  in 
relation  to  the  voyage  referred  to  in  this  case,  John  C.  Pawson 
was  to  receive  the  sum  of  sixty  dollars  per  month,  as  captain 
of  the  ship  Chesapeake;  and  that  the  sum  of  $2000,  also  refer- 
red to  in  these  proceedings,  was  a  compensation  agreed  to  be 
paid  to  him,  as  stated  in  the  letter  of  instructions,  dated  the 
18th  of  November,  1819." 

1 .  At  the  trial  of  this  cause,  the  plaintiffs  read  in  evidence, 
by  consent,  the  following  letters  of  instructions :  the  first  dated 
Baltimore  the  18th  of  November,  1819,  from  the  defendant  to 
the  plaintiffs'  intestate,  John  C.  Pawson,  viz : 

"  With  my  ship,  Chesapeake,  of  which  you  are  commander, 
you  will  proceed  with  all  possible  despatch,  to  the  port  of 
London.  On  your  arrival,  you  will  deliver  my  letters  to  John 
Ilorstman,  Esq.  to  whom  your  ship  and  cargo  are  consigned. 
In  the  discharge  of  the  cargo  lose  no  time,  and  be  careful  to 
have  it  delivered  in  good  order.  It  may  be  advisable,  that 
immediately  on  arrival,  you  will  engage  sufficient  ballast  for 
your  ship,  and  in  every  other  respect  provide  what  may  be 
necessary  to  perform  a  long  voyage.  When  so  prepared, 
apply  to  Mr.  Horstman,  who  will  deliver  you,  on  my  account, 
eight  thousand  doubloons,  which  you  will  endeavour  to  ship  on 
board  without  the  knowledge  of  your  crew.  If  they  are  under 
a  belief  that  you  have  no  specie,  less  danger  may  be  appre- 
hended from  them;  but  I  recommend  to  you  never  to  be  off 
your  guard.  With  the  ship,  and  the  coin  on  board,  you  will 
proceed  to  the  port  of  Coquimbo,  in  Chili,  for  the  purpose  of 
loading  entirely  with  copper,  and  with  it  proceed  to  Canton; 
there  dispose  of  it,  and  with  the  proceeds,  load  your  ship 
agreeably  to  the  list  I  have  furnished,  and  return  with  the  same 


4  CASES  IN  THE  COURT  OF  APPEALS 

Paw»on's  Adm'rs  vs.  Donncll.     Donnell  rs.  Pawson's  Adm'rs — 1829. 

direct  to  me  here.    On  your  arrival  from  London  at  Coquim- 
bo,  you  must  not  let  it  be  known  the  quantity  of  copper  you 
want,  nor  of  your  having  only  doubloons  to  purchase  it.     In 
the  purchase  of  the  copper,  if  made  known  how   much  you 
wanted,  the  price  would  be  raised  on  you,  and  in  relation  to  the 
doubloons,  if  it  should  be  known  that  you  have  nothing  else 
to  purchase  with,  it  might  have  the  effect  of  reducing  their 
value.    There  can  be  no  doubt,  from  the  best  information  I 
have,  that  they  will  bring  $17J,  and  may  exceed  that  by  re- 
ceiving for  them  the  coined  dollars  under  the  present  govern- 
ment there.    All  these  points  you  must  attend  to.    If  you  have 
the  means  of  completing  the  purchase,  you  must  put  on  board 
at  least  12,200  quintals.     It  may  be  necessary  to  apprise  you, 
that  much  benefit  may  accrue  by  your  attending  and  making 
the  proper  arrangements  for  receiving  and  weighing  the  copper. 
I  suppose  it  to  be  useless  to  mention  the  necessity  of  discharging 
from  the  ship  every  pound  of  ballast,  or  useless  matter  on  board 
of  her,  before  you  take  the  copper  on  board,  because  every 
pound  so  discharged,  enables  you  to  put  in  place  thereof  a 
pound  of  copper.    Since  writing  the  above,  on  examining  let- 
ters from  Chili,  dated  in  January  last,  it  appears  there  is  a  pa- 
per currency,  depreciated  in  its  value — this  being  the  case,  and 
that  this  depreciated  paper  is  payable  and  receivable  for  the 
products  of  the  country,  I  say,  if  this  is  the  case,  much  benefit 
might  be  made  by  selling  the  doubloons  for  the  paper  money  ; 
but  you  might  find  that  with  the  coin  you  could  even  do  better 
to  purchase,  and  pay  in  it,  than  to  first  sell  your  coin  for  the  de- 
preciated currency,  and  to  purchase  and  pay  with  it.     In  all 
these  points,  you  are  to  make  your  estimates  and  calculations. 
About  two  years  since,  I  sent  my  schooner  Midas,  Capt.  Dick- 
inson, with  Edward  M'Clure,  supercargo,  who   loaded  the 
schooner  at  Coquimbo,  with  copper,  and  despatched  her  to  me. 
JW'Clure  remained  at  Valparaiso,  to  dispose  of  a  part  of  the 
outward  cargo  then  unsold,  and  close  the  entire  business  of  the 
voyage.     He  would  certainly  be  there  until  the  month  of  Sep- 
tember, and  he  may  still  be  at  Valparaiso  on  your  arrival  at  Co- 
quimbo.   Should  you  see  him,  and  he  has  any  funds  of  mine,  or 


OF  MARYLAND. 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

that  he  has  departed  from  thence,  and  you  find  he  has  placed 
any  of  my  property  in  the  hands  of  any  person  there,  in  either 
case,  I  authorise  and  empower  you  to  receive  and  carry  it  with 
you,  either  in  copper  or  Spanish  dollars,  of  the  old  coin.  Mr. 
Richard  R.  Boughan,  residing  at  Valparaiso,  will  give  you 
every  information  in  relation  to  the  affairs  of  M'-Clure,  should 
he  have  left  that  country  before  you  arrive.  Boughan  ought  to 
have  property  of  mine  in  his  hands  from  a  former  transaction, 
which  I  authorise  you  to  receive  from  him  also.  Boughan  may 
be  able  to  give  you  useful  information.  Be  particular  in  the 
purchase  of  every  article  in  Canton,  to  have  them  of  the  very 
best  quality,  and  more  particularly  that  the  teas  are  so.  To 
prevent  misunderstanding,  I  deem  it  necessary  to  state  your 
compensation  to  be  two  thousand  dollars,  payable  on  your  re- 
turn, with  a  privilege  from  Canton,  not  to  exceed  twenty-five 
tons,  but  it  is  to  be  understood  that  you  are  not  to  put  any  cop- 
per or  heavy  article  on  board  at  Chili,  as  my  views  are  that  you 
completely  load  her  there  with  copper,  and  that  only  for  my  ac- 
count. After  my  property  and  your  privilege  are  on  board, 
and  the  ship  should  not  be  full,  if  freight  offers  deliverable 
here,  you  will  accept  it. 

"  Should  you  fail  in  procuring  copper  at  Chili,  you  will  pro- 
ceed in  the  ship  with  the  doubloons  direct  to  Batavia,  where 
they  are  rated  as  high  as  in  Chili,  and  witli  them  purchase  an 
entire  cargo  of  coffee,  which  will  require  with  proper  storage 
from  8,500  to  9,000  picols.  This  quantity  was  brought  in  her 
by  Captain  Munn,  but  she  was  full  in  every  part.  Do  not  pur- 
chase a  picol  of  sugar;  and  should  your  funds  prove  insufficient 
to  fill  her,  I  authorise  you  to  draw  bills  for  my  account  on 
Messrs.  Baring,  Brothers  Sf  Co.  of  London,  or  on  Messrs. 
Hope  Sf  Co.  of  Amsterdam.  When  you  complete  your  business 
in  Batavia,  you  will  proceed  from  thence  direct  to  this  port. 
In  stating  your  privilege,  it  is  to  be  understood  the  twenty-five 
tons  are  measurement,  and  if  in  weighty  articles,  twenty-five 
thousand  pounds. 

The  other  dated  Baltimore,  the  26th  December,  1819,  from 
the  defendant  to  the  plaintiff's  intestate,  viz : 


6  CASES  IN  THE  COURT  OF  APPEALS 

Pawsou's  Adm'rs  vs.  Donncll.     Donncll  cs.  Pawson's  Adm'rs — 1829. 


"  I  tliink  it  is  probable  you  arc  this  day  in  London,  notwith- 
standing I  have  concluded  to  address  you,  and  to  take  the 
chance  of  its  reaching  you  before  you  depart  from  thence. 
The  object  is  to  state  to  you,  that  from  mature  reflection,  sup- 
ported by  various  calculations,  resulting  in  a  conviction  that  the 
voyage  will  tum  out  to  better  advantage  by  returning  direct 
from  the  coast  of  Chili  to  Baltimore  with  copper,  than  to  pro- 
ceed with  it  from  thence  to  Canton,  as  originally  intended.  I 
need  not  remark  to  you  the  great  difficulty  and  delay  (and  with- 
out an  adequate  profit)  of  realizing  a  Canton  cargo  in  this  mar- 
ket It  is  not  to  be  accomplished,  and  I  would  consequently  be 
compelled  to  send  it  from  hence  to  Europe,  where  no  gain  can 
be  calculated  upon.  I  therefore  revoke  and  countermand  the 
orders  I  gave  to  you  to  proceed  from  Chili  to  Canton,  and  now 
substitute  that  you  will  return  with  the  ship  and  cargo  of  cop- 
per direct  from  the  coast  of  Chili  to  Baltimore.  As  relates  to 
the  investment  and  disposal  of  your  own  funds,  you  must  use 
your  own  discretion  by  investing  it  in  copper  or  any  thing  else, 
and  bringing  it  with  you  in  the  ship — the  copper  may  (as  I  hope 
it  will)  be  bought  on  terms  that  will,  with  my  funds  and  yours, 
load  the  ship  very  deep,  but  if  necessary  you  must  load  her 
very  deep.  Should  you  fail  in  getting  copper  on  the  coast  of 
Chili,  you  will  immediately,  on  finding  it  so,  proceed  from 
thence  to  Samarang,  in  the  Island  of  Java,  and  there  invest  my 
funds  and  your  own  in  coffee,  (no  other  article  of  the  produce  of 
the  Island  will  answer)  and  proceed  from  thence  direct  to  Bal- 
timore. The  government  of  Batavia  may  object  to  your  load- 
ing at  Samarang,  being  an  out  port,  but  you  must  use  every 
means  in  your  power  to  obtain  from  the  government  a  permis- 
sion, as  you  will  be  able  to  put  on  board  coffee  at  Samarang, 
two  or  three  dollars  pr.  picol  less  than  at  Batavia." 

The  plaintiffs  also  offered  in  evidence  that  the  ship  Chesa- 
peake, at  the  date  of  the  said  letter,  and  before,  was  owned  by 
Donnell,  who  continued  to  be  the  owner  of  the  said  ship  during 
the  voyage  hereinafter  mentioned,  and  until  and  after  her  re- 
turn to  Baltimore,  as  hereinafter  stated — that  Pawson,  now  de- 
ceased, was  master  and  supercargo  of  the  said  ship,  at  the  date 


OF  MARYLAND. 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

of  the  said  letter,  and  so  continued  until  his  death  at  Coquimbo, 
as  hereinafter  mentioned.  That  the  said  vessel  sailed  on  the 
said  voyage  from  the  port  of  Baltimore,  November  19th,  1819, 
and  arrived  at  London  January  25th,  1820.  That  she  sailed  on 
the  4th  day  of  May,  1820,  from  London  for  Coquimbo,  and  ar- 
rived there  on  the  15th  of  August,  1820,  and  sailed  from  Co- 
quimbo  for  Guasco  in  January  19,  1821,  arrived  at  Guasco 
January  21, 1821,  and  continued  there  until  January  29,  1821, 
when  she  sailed  for  Baltimore.  That,  after  being  out  only  six 
hours,  the  ship  sprung  aleak,  and  put  back  to  Guasco,  where  she 
remained  until  February  7, 1821,  when  she  sailed  for  CoquimbOj 
and  remained  there  until  July  9, 1821,  when  she  sailed  for  Val- 
paraiso, where  she  arrived  on  the  12th  July,  1821,  and  remain- 
ed there  until  the  1 9th  of  that  month,  when  she  sailed  for  Bal- 
timore, where  she  arrived  October  1, 1821.  ThatPawson  died 
at  Coquimbo,  December  4th,  1820,  when  the  mate,  Thomas  Jl. 
Lane,  took  charge  of  the  ship,  and  continued  master  and  com- 
mander until  she  returned  to  Baltimore,  as  above  stated. 

The  plaintiffs'  then  offered  and  read  in  evidence,  the  follow- 
ing letters  and  papers,  which  were  admitted  to  be  in  the  hand- 
writing of  the  respective  parties  thereto,  viz :  A  letter  from  the 
plaintiffs'  intestate  to  the  defendant,  dated  London,  the  7th  of 
February,  1820. 

"  After  a  very  long  and  fatiguing  passage,  I  arrived  in  the 
river  on  the  23d  ult.  without  any  material  damage — In  conse- 
quence of  our  ship's  heavy  draught  of  water,  we  were  delayed 
several  days  in  getting  up.  We  are  now  about  two  thirds  dis- 
charged, and  proceeding  with  all  possible  despatch.  As  the 
ship  wants  caulking  in  the  bends  and  upperworks,  and  a  new 
beam  in  her  (one  of  them  being  broken  entirely  off)  I  have  con- 
cluded to  put  her  into  a  dry  dock  where  it  can  be  done  with 
more  despatch  and  facility,  and  will  not  increase  the  expense 
above  £5,  and  it  will  afford  a  cheap  opportunity  to  examine 
her  bottom,  as  the  copper  may  have  been  injured  when  she  lost 
her  rudder.  I  am  sorry  to  find  that  doubloons  cannot  be  got  at 
the  price  you  contemplated,  and  that  the  quantity  cannot  be 
procured  in  London — they  have  only  yet  got  about  one  third  of 


8  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  us.  Pawson's  Adm'ra. — 1829. 

the  number  wanted,  but  have  no  doubt  they  can  be  obtained 
from  France  and  Holland,  they,  by  the  last  accounts  from  Paris, 
are  quoted  lower  than  they  cost  here,  from  which  circumstance 
Mr.  Horstman  thinks  they  are  plenty  there — the  price  here  is 
75  1  -6  per  oz. 

"  I  have  had  the  pleasure  to  receive  your  letter  of  the  26th 
December,  in  which  you  are  pleased  to  alter  the  original  inten- 
tion of  the  voyage,  which  will  be  cheerfully  and  strictly  attend- 
ed to,  and  if  on  my  arrival  at  Chili,  I  should  find  it  necessary 
to  proceed  to  the  island  of  Java,  no  exertions  shall  be  wanting 
to  have  your  wishes  fulfilled  in  getting  the  cargo  of  coffee  only 
at  Samarang" 

Another  letter  from  the  plaintiffs'  intestate  to  the  defendant, 
dated  London,  the  27th  of  April,  1820. 

"On  the  24th  inst.  Mr.  Horstman  addressed  a  letter  to  me, 
stating  that  in  consequence  of  the  advanced  price  of  doubloons, 
and  the  probability  that  the  flour  would  not  produce  so  great  a 
sum  as  you  calculated  on,  the  funds  you  had  provided  him  with, 
would  not  be  sufficient  to  fulfil  your  order  in  the  purchase  of 
the  eight  thousand  doubloons  which  I  am  directed  to  receive 
from  him,  and  requested  me  to  state  in  writing  what  I  thought 
best  to  be  done — In  answer  to  which  I  wrote  him  that  in  my 
opinion  had  you  foreseen  or  supposed  any  deficiency  such  as 
above  mentioned,  you  would  not  have  ordered  a  less  quantity  of 
doubloons  but  would  have  made  the  requisite  provision  to  ob- 
tain the  full  quantity  of  eight  thousand.  I  was  the  further  con- 
firmed in  this  opinion  by  reflecting  that  your  only  object  in  send- 
ing the  ship  to  London  was  to  obtain  the  doubloons,  and  to  be 
disappointed  therein  would  frustrate  the  ultimate  object  of  the 
voyage  you  had  in  view.  I  was,  therefore,  clearly  of  the  opin- 
ion that  you  would  expect  him  to  supply  the  deficiency  (which 
was  about  950  doubloons)  so  that  your  ship  might  proceed  with- 
out further  delay.  With  this  answer  he  was  satisfied,  and  con- 
tinued the  purchase,  and  has  now  ready  7650  doubloons,  leav- 
ing a  deficiency  of  350,  which  he  thinks  can  be  obtained  in  one 
or  two  days.  Under  these  circumstances,  we  have  fixed  on  the 
first  day  of  May  for  the  departure  of  the  ship,  with  determina- 


OF  MARYLAND. 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

tion  of  taking  what  may  then  be  deficient,  in  dollars,  rather 
than  incur  further  expense  by  delay.  In  consequence  of  the 
scarcity  of  doubloons,  I  have  thought  it  adviseable  to  invest  my 
own  funds  in  merchandize,  in  hopes  that  it  may  do  as  well,  and 
because  I  would  not  interfere  in  any  manner  with  your  busi- 
ness, I  therefore  request  that  you  will  effect  insurance  from 
hence  to  Coquimbo,  on  the  following  merchandize  and  amount : 
1  bale  8  cases  British  piece  goods,"  &c.  the  whole  amounting, 
with  commission,  &c.  to  £1115  13  3. 

"  I  shall  send  copies  of  the  invoices  to  my  family,  in  case  they 
should  be  necessary.  The  circumstance  of  the  crew  nearly  all 
running  away,  after  I  had  paid  them  the  month's  advance  they 
were  to  receive  here,  and  my  being  obliged  to  advance  others 
two  months'  pay,  this  long  and  unavoidable  detention,  and  the 
great  necessities  of  the  ship  in  sails,  cables,  &c.  which  was  in- 
dispensable for  the  voyage,  has  added  greatly  to  the  disburse- 
ments, the  bills  of  which  Mr.  Horstman  will  forward  to  you ; 
but  being  now  supplied,  I  shall  be  careful  to  keep  the  expenses 
for  the  remainder. of  the  voyage,  as  low  as  possible,  which  I 
trust  will  appear  to  your  satisfaction  in  the  event." 

A  letter  from  Horstman  to  the  plaintiffs'  intestate,  dated  Lon- 
don, the  24th  of  April,  1820. 

"  You  have  been  verbally  acquainted  by  me  of  the  difficul- 
ties which  have  arisen  since  Mr.  John  Donnell  despatched  the 
Chesapeake  to  my  address  with  a  cargo  of  flour,  and  with  or- 
der to  invest  the  proceeds,  and  a  credit  of  £21, 000,  on  Messrs. 
Varkevessar,  Derrapool  8f  Brown,  of  Rotterdam,  in  the  purchase 
of  8000  doubloons. 

"You  are  aware  that  the  literal  execution  of  this  order  has 
become  impossible  by  circumstances.  You  know  that  of  the 
flour  I  have  only  been  able  to  sell  about  700  bbls.  and  that  the 
remainder  remains  on  my  hands — that  I  cannot,  for  the  present, 
sell  it,  and  that  the  ultimate  proceeds  of  the  4721  bbls.  is  uncer- 
tain. You  have  been  eye-witness  of  the  impossibility  of  getting 
the  doubloons  otherwise  than  gradually,  and  this  part  of  the  bu- 
siness has  only  lately  taken  a  turn  by  the  unexpected  arrival  of 
about  1 600  doubloons  from  the  Mediterranean,  and  think  the  re- 
VOL.  I.— 2. 


10  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  vs.  Pawson'a  Adm'rs. — 1829. 

maiuder,  (about  900)  or  very  near,  may  now  be  had.  But  the 
£21,000,  and  the  amount  of  the  700  bbls.  which  are  sold,  are 
not,  by  far,  sufficient  for  the  draft  of  Mr.  Donnell  for  £1160, 
to  your  order,  together  with  the  ship's  expenses,  and  the  cost  of 
the  8000  doubloons ;  and  if  you  judge  that,  under  all  the  cir- 
cumstances of  the  case,  it  is  necessary  for  Mr.  DonnelVs  inter- 
est that  the  deficiency  be  supplied  by  me  to  make  up  the  8000 
doubloons,  I  am  ready  to  do  so,  in  order  to  get  the  vessel  away 
immediately,  and  to  furthering  Mr.  DonnelPs  -ulterior  views  in 
this  affair.  You  will  therefore  please  to  say,  in  writing,  what 
you  deem  to  be  for  Mr.  DonnelVs  interest,  and  what  you  wish 
me  to  do." 

A  letter  from  the  plaintiffs'  intestate  to  Horstman,  dated  Lon- 
don the  24th  of  April,  1820. 

"  Understanding  from  you  that  there  is  a  deficiency  in  the 
means  Mr.  Donnell  has  placed  in  your  hands,  in  order  to  supply 
the  eight  thousand  doubloons,  I  am  directed  by  him  to  receive 
from  you,  which  deficiency,  it  appears,  arises  from  the  doub- 
loons being  at  a  more  advanced  price  than  he  had  contempla- 
ted, and  from  the  probability  that  the  Chesapeake^  cargo  of 
flour,  which  you  hold  for  sale  on  his  account,  not  producing  so 
great  a  sum  as  he  calculated  on,  I  have  to  state  to  you,  as  my 
decided  opinion,  that  had  Mr.  Donnell  foreseen  or  supposed 
any  deficiency,  such  as  above  mentioned,  he  would  not  have 
ordered  a  less  quantity  of  doubloons,  but  would  have  made  the 
requisite  provision  by  enlarging  the  means  he  has  placed  at 
your  disposal,  so  as  to  supply  the  full  quantity  of  eight  thous- 
and doubloons.  I  am  the  further  confirmed  in  this  opinion,  by 
the  knowledge  that  the  grand  object  of  the  voyage  he  has  in 
view  for  the  Chesapeake,  depends  entirely  on  obtaining  the  re- 
quisite funds  in  London,  (say  the  eight  thousand  doubloons)  to 
accomplish  which  was  Mr.  DonnelVs  only  object  in  sending 
the  ship  to  London.  I  am  therefore  clearly  of  opinion,  that 
Mr.  Donnell  will  not  only  expect,  but  esteem  it  a  favor,  that 
you  supply  that  deficiency  for  his  account  as  soon  as  possible, 
so  that  his  ship  may,  without  further  delay,  proceed  on  her 


OF  MARYLAND.  11 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

voyage,  and  I  am  confident  he  will  hold  himself  responsible  for 
the  transaction." 

A  letter  from  the  plaintiffs'  intestate  to  the  defendant,  dated 
London  the  27th  of  April,  1820. 

"  I  am  happy  to  inform  you,  that  after  a  very  long  and  tedious 
delay,  Mr.  Horstman  has  at  length  nearly  completed  your  order 
for  the  doubloons,  having  now  already  purchased  7650.  We 
have  fixed  the  first  day  of  May  for  the  departure  of  the  ship, 
and  if  the  remainder  of  the  doubloons  cannot  be  purchased  in 
time,  we  have  determined,  rather  than  incur  any  further  delay, 
to  take  the  amount  in  dollars. 

[This  letter  then  incorporates  a  copy  of  the  previous  letter 
of  same  date.] 

"  May  3d.  Since  writing  the  above,  we  have  completed  the 
quantity,  and  shall  proceed  on  board  to-morrow  morning. 
There  is  a  ship  just  arrived  from  Chili,  by  which  I  learn  indi- 
rectly, there  is  a  great  probability  of  our  accomplishing  our  ob- 
ject there.  Mr.  Horstman  will  transmit  to  you  the  duplicates 
of  the  bills  for  the  ship's  outfits,  which,  together  with  the  en- 
closed, (which  accounts  for  the  cash  received  from  him,)  will 
shew  the  whole  amount.  I  have  one  passenger,  who  has  paid 
£100,  one  half  of  which  I  have  paid  for  stores,  and  divided 
the  other  between  myself  and  the  ship,  which  you  will  find 
credited  on  the  enclosed." 

Another  letter  from  the  plaintiffs'  intestate  to  the  defendant, 
dated  Coquimbo  the  1 5th  of  August,  1 820. 

"I  arrived  here  on  the  13th  inst.  after  a  passage  of  ninety- 
three  days,  all  well.  I  have  not  yet  been  able  to  collect  suffi- 
cient information  to  act  decisively  with  respect  to  loading,  and 
shall  not  determine  until  I  have  heard  from  St.  Jago  and  Valpa- 
raiso, whither  1  have  written  to  Mr.  Boughan,  and  Mr.  M'-Clure, 
(who  I  understand  is  yet  in  this  country,)  for  that  purpose ;  the 
information  I  get  here  is,  that  about  6000  quintals  of  copper 
may  be  got  immediately  here,  and  at  Gwctsco,  a  port  a  little 
way  to  the  northward  of  this,  and  that  1  could  complete  the 
quantity  as  far  as  my  funds  would  go,  in  the  course  of  three 
months-,  the  price  is  said  to  be  somewhat  lower  than  hitherto, 


12  CASES  IN  THE  COURT  OF  APPEALS 

Pawson'3  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

and  I  think  may  be  bought  for  $12,  and  will  stand  on  board  at 
about  $14,  or  $14J,  with  the  duties  paid.  I  believe,  however, 
that  something  may  be  done  to  save  a  part  of  the  duties;  the 
doubloons  are  worth  $17J  as  you  supposed,  and  8000  amount 
to  $138,000,  which  Avill  put  on  board  at  the  above  price,  up- 
wards of  9600  quintals,  or  998,400  Ibs.  and  valuing  that  quan- 
tity at  20  cents,  and  the  doubloons  at  cost,  I  am  of  the  opinion 
will  yield  a  better  result  than  continuing  the  voyage  to  Batavia; 
but  as  there  is  no  ship  here  wanting  copper,  I  shall  not  com- 
mence the  purchase  until  I  make  myself  better  acquainted  on  the 
subject,  and  until  I  am  certain  of  getting  the  whole  quantity. 
With  respect  to  the  depreciated  paper  currency  you  mention  in 
your  instructions  to  me,  I  find  it  only  receivable  by  the  govern- 
ment in  payment  for  duties,  and  only  for  half  the  amount,  they 
requiring  the  other  half  in  cash:  it  may  be  bought  at  a  discount 
of  twenty  per  cent,  which  advantage  I  shall  not  neglect  to  avail 
myself  of.  I  have  not  yet  learned  any  thing  concerning  the 
state  of  your  business  here,  under  the  superintendence  of 
Messrs.  Boughan  and  M'Clure,  but  shall  take  the  earliest  op- 
portunity of  forwarding  to  you  whatever  I  may  learn  on  the 
subject." 

Another  letter  from  the  plaintiffs'  intestate  to  the  defendant, 
dated  Coquimbo,  August  24,  1820. 

"Since  writing  you  on  the  15th  inst.  stating  that  6000  quin- 
tals of  copper  might  be  immediately  secured;  and  our  whole 
cargo  contracted  to  be  delivered  in  three  months,  I  have  con- 
cluded to  load  here,  and  hope  that  it  may  meet  your  views  and 
approbation.  So  large  a  quantity  of  copper  as  I  want,  cannot 
ever  be  procured  here  at  once,  and  from  what  I  learn  from  the 
best  authority,  there  has  never  been  a  more  favourable  oppor- 
tunity than  the  present,  for  obtaining  so  large  a  quantity.  1 
have  therefore  thought  it  most  prudent,  and  have  accordingly  se- 
cured the  6000  quintals  at  $12,  and  have  every  prospect  of  get- 
ting the  balance  at  the  same  price,  and  in  the  time  above  men- 
tioned. The  copper,  at  this  price,  will  stand,  on  board,  duties 
paid,  at  $14, 14J— 100.  The  value  of  the  doubloons  are  $17J, 
and  with  the  funds  I  have,  will  put  on  board  upwards  of  9600 


OF  MARYLAND.  13 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson'a  Adm'rs. — 1829. 

quintals.  Mr.  Boughan  writes  me  that  he  has  not  made  any 
collections  for  your  account,  and  indeed,  says  there  is  very 
little  probability  of  his  ever  doing  so.  He  has  instituted  a  law 
suit  against  the  debtor,  who  he  says  is  so  poor  that  he  does  not 
expect  any  thing  from  him,  even  if  he  is  cast ;  he  speaks  also, 
of  great  difficulties  he  has  had  in  ascertaining  the  amount  of  the 
debt,  in  consequence  of  some  necessary  books  or  papers  having 
been  destroyed  in  the  revolutionary  wars  of  this  country. 
Upon  the  whole,  there  is  very  little  prospect  of  getting  any 
thing  from  him.  I  have  not  yet  received  any  communication 
from  Mr.  Jfcf'CZwre,  (who  is  married  at  Santiago)  but  Mr. 
Boughan  informs  me  that  he  believes  Mr.  M'-Clure  holds  some 
government  paper  for  your  account,  and  if  this  intelligence  is 
confirmed,  my  purchasing  copper  here  offers  a  favourable  op- 
portunity of  making  use  of  it  to  advantage,  as  it  is  at  twenty 
per  cent,  discount,  but  will  be  received  at  par  by  the  govern- 
ment, in  payment  for  half  the  amount  of  duties,  but  the  other 
half  must  be  paid  in  cash — this  arrangement  will  also  increase 
the  quantity  of  copper,  if  effected.  In  my  former  letter,  I 
informed  you  that  the  government  here  had  issued  orders  that 
have  a  direct  tendency  to  encourage  desertion  of  seamen  from 
our  ships,  in  consequence  of  which  I  have  shared  the  fate  of 
several  others  by  losing  sixteen  of  my  crew,  which  entirely 
disables  me  from  proceeding  in  the  discharge  and  loading  my 
ship — they  are  now  on  board  one  of  their  brigs  of  war,  and 
unless  captain  Dowries  arrives  here  this  evening,  as  we  expect  he 
will,  they  will  succeed  in  carrying  them  off.  I  think,  however, 
that  if  captain  Dowries  should  not  arrive  time  enough  to  prevent 
this  diabolical  proceeding,  that  he  will  no  doubt  give  me  a  crew 
from  the  frigate." 

"Account  sales  of  sundries  made  by  Edwards  fy  Stewart 
to  the  government  of  Chili,  for  account  of  captain  John  C. 
Pawson,  ship  Chesapeake.  August  25,  1820.  45  coils  cord- 
age, weighing  1 13  qrs.  87  Ibs.  a  $20,  f  2277  3| — and  one  day 
and  night  glass,  $30,  amounting  in  the  whole,  after  deducting 
$92  02  for  commissions,  to  $2215  01 1." 


14 


Pawson's  Adm'rs  rs.  Dunncll.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

A  letter  from  the  plaintiffs'  intestate  to  Lemuel  Goddard,  da- 
ted Coquimbo,  the  25th  of  August,  1820. 

"  Above  you  have  the  account  sales  of  the  cordage  you  ship- 
ped on  board  the  Clicsapeake,  which  you  will  perceive  I  have 
obtained  a  good  price  for.  I  also  sold  the  spy  glass,  but  the  foul 
air  extractor  and  the  compasses  yet  remain  on  hand,  without 
any  probability  of  selling  them,  and  if  I  am  obliged  to  take  them 
to  the  United  States,  shall  deliver  them  to  your  order  there. 
My  principal  object  in  addressing  you  now,  is  to  give  you  an 
opportunity  to  make  insurance  on  the  amount  of  your  interest 
in  the  above  transaction.  This  I  think  the  more  advisable,  be- 
cause a  chance  now  offers  for  conveyance  to  England,  and  it 
is  quite  uncertain  if  I  shall  have  an  opportunity  to  write  to  the 
United  States  for  insurance.  Our  interest,  as  per  agreement, 
stands  thus:  Nett  amount  of  sales,  $221 5  01 1.  Deduct  cost  and 
charges  per  invoice,  $1232  01  £ — leaving  $983  00£ — One  half 
of  which  is  $496  04|.  Which  added  to  the  original  costs  and 
charges,  $1232  01,  makes  $1728  05J. 

"  Which  sum,  say  $1728  05  J,  I  leave  you  to  get  insured  from 
hence  direct  to  Baltimore,  where,  on  the  safe  arrival  of  the 
funds,  I  hold  myself  responsible  to  pay  said  amount  to  your 
order.  It  was  a  mere  chance  I  was  enabled  to  get  so  good  a 
price  for  the  cordage.  The  fleet  from  Valparaiso  on  the  way 
to  attack  Lima,  put  in  here,  and  was  very  much  in  want  of  it,  or 
I  fear  we  should  have  a  poor  account  of  it,  and  I  would  advise 
you  not  to  let  our  present  success  induce  you  to  ship  any  quan- 
tity of  cordage  to  this  country,  as  the  probability  is,  it  would 
not  sell." 

A  letter  from  the  plaintiffs'  intestate  to  Edwards  ty  Stewart, 
dated  at  Coquimbo  the  19th  of  August,  1820. 

"  In  consequence  of  the  representations  made  by  you,  that 
six  thousand  quintals  of  copper  might  be  immediately  bought  at 
$12  per  quintal,  and  your  decided  opinion  that  the  balance  of 
my  cargo  may  be  contracted  for  at  the  same  price,  to  be  deliv- 
ered on  the  first  of  November,  I  have  determined  to  load  my 
ship  here,  and  hereby  authorise  you  to  purchase  the  6000  quin- 
tals, and  secure  the  remainder,  amounting  to  between  three  and 


OF  MARYLAND.  15 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

four  thousand  quintals  with  all  possible  despatch,  on  the  terms 
above  mentioned,  or  lower  if  possible.  In  making  these  con- 
tracts, I  would  recommend  your  particular  attention  to  have  them 
only  with  men  in  whom  you  have  perfect  confidence,  both  as  to 
the  quality  of  the  copper  and  to  the  punctuality  of  the  delivery. 
It  is  understood  that  you  secure  to  me  the  just  and  true  perform- 
ance of  the  said  contracts,  so  that  I  shall  not  meet  with  material 
delay  to  my  ship.  It  is  also  agreed  that  you  are  to  receive  two 
and  a  half  per  cent,  commission,  and  one  per  cent,  storage, 
amounting  to  three  and  a  half  per  cent,  on  the  amount  of  the 
purchase.  I  must  also  request  your  particular  care  and  atten- 
tion to  secure  every  advantage  that  can  be  obtained  in  weigh- 
ing the  copper  and  in  paying  the  charges  and  duties.  It  is  also 
understood  that  you  are  not  to  purchase  copper  for  any  other 
order,  until  my  cargo  is  completed. 

"Understand  that  the  two  and  a  half  per  cent,  is  on  the 
amount  of  the  invoice,  and  the  one  per  cent,  on  the  amount  of 
the  copper  at  first  cost,  exclusive  of  duties  and  other  charges." 

A  letter  from  Edwards  fy  Stewart  to  the  plaintiffs'  intestate, 
dated  Coquimbo  the  4th  of  September,  1 820. 

"  We  have  received  your  letter  of  this  date,  in  which  you 
request  our  purchasing  for  your  account  from  9  to  10,000  quin- 
tals of  copper,  at  or  under  $12  per  quintal.  Agreeably  to  ver- 
bal information  given  jou  by  us,  that  we  thought  6000  quintals 
might  be  secured  much  before  the  time  limited,  we  have  now 
the  pleasure  of  confirming  it  by  enclosing  you  herewith,  our  ob- 
ligation at  sight,  for  said  amount,  say  six  thousand  quintals  cop- 
per, which  you  may  dispose  of  when  you  judge  most  proper. 
As  regards  the  residue  of  your  order,  although  we  cannot  come 
under  an  obligation  for  its  purchase,  yet  we  think  our  success 
will  be  almost  certain  from  information  we  have,  and  a  pledge 
we  make  you  on  itot  purchasing  on  any  other  order  until 
yours'  is  completed — on  this  point  we  can  say  no  more.  We 
accept  the  commissions  as  stated  by  you,  two  and  one  half  per 
cent,  on  cost]  and  charges,  and  one  per  cent,  on  storage  on  the 
amount  of  the  purchase  of  the  copper.  All  contracts  made  by 
us  come  under  our  responsibility,  not  only  as  to  the  faithful 


16  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson's  Admr's. — 1829. 

delivery,  but  likewise  as  to  the  quantity  of  the  copper.  All 
copper  received  is  weighed  by  us  in  person,  and  every  regard  is 
paid  to  this  branch  that  the  interest  of  the  concern  requires." 

A  letter  from  the  plaintiffs'  intestate  to  the  defendant,  dated 
Coquimbo,  the  4th  of  September,  1820. 

"  I  have  to  inform  you  that  your  business  remains  nearly  in 
the  same  state  as  when  I  wrote  you  on  the  24th  ult.  viz.  that  I 
have  purchased  6000  quintals  of  copper,  and  shall  have  the  re- 
mainder, amounting  to  between  three  and  four  thousand  quintals, 
ready  by  the  first  of  November,  at  $12  per  quintal,  which, 
with  the  duties  and  shipping  charges  paid,  will  stand  on  board 
at  about  $14  more  or  less.  In  this  transaction  I  was  determin- 
ed by  reflecting  that  a  pound  of  copper  at  that  price,  would 
nett  in  the  United  States,  as  much  profit,  and  with  more  cer- 
tainty, than  a  pound  of  coffee,  and  that  the  additional  expense 
of  pursuing  the  voyage  further  would  be  saved,  and  I  trust  that 
this  view  of  the  subject  will  meet  your  approbation.  I  have 
not  yet  received  any  communication  from  Mr.  MiClure  re- 
specting your  property  in  his  hands,  nor  can  I  give  you  any 
certain  information,  except  that  I  have  understood  that  he  had 
invested  the  government  paper  which  he  held  in  silks,  a  part  of 
which  he  sent  down  the  coast  for  sale,  and  the  remainder  he 
had  deposited  in  this  place,  but  has  recently  ordered  them 
somewhere  else.  I  shall  use  my  best  endeavours  to  have  a 
settlement  with  him,  if  possible,  but  I  think  there  is  no  chance 
whatever,  of  getting  any  thing  from  Mr.  Boughan.  I  am  yet 
without  a  crew:  in  consequence  of  the  Macedonian  having  a 
long  passage  from  Valparaiso  to  this  place,  Cochrane  had  time 
to  carry  off  the  men,  and  captain  Dowries  would  not  supply  me 
from  the  frigate,  as  he  thought  there  was  a  probability  of  his 
having  some  trouble  witb  Cochrane,  if  he  should  attempt  to 
obstruct  his  entrance  into  Lima.  He~>'has  taken  a  list  of  the 
deserters,  and  intends  to  demand  them.  Understanding  that 
there  are  plenty  of  seamen  in  Valparaiso,  I  have  written  to  the 
consul  there,  requesting  him  to  procure  me  a  crew,  and  send 
them  down  by  the  first  opportunity,  so  that  I  am  in  hopes  of 
soon  being  able  to  proceed  with  loading,  and  shall  use  every 


OP  MARYLAND.  17 


Pawson's  Adm'rsrs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs — 1829. 

exertion  for  despatch  in  my  power.  As  I  may  possibly  not  have 
another  opportunity  direct  to  the  United  States  shortly,  I  would 
thank  you  when  you  make  insurance  on  the  ship  and  cargo,  also 
to  insure  for  my  account,  the  same  sum  which  you  did  me 
favour  to  insure  from  London  here.  I  think  it  prohahle  it  will 
be  shipped  in  silver  bullion  and  copper.  As  it  is  necessary  to 
have  some  light  and  bulky  article  to  stow  with  the  copper,  in 
order  to  raise  it  in  the  hold  as  much  as  possible,  I  have  pur- 
chased for  that  purpose  a  few  hundred  hides,  and  shall  increase 
the  quantity  to  one  thousand,  if  they  can  be  obtained — they 
cost  from  9  to  12  rials  per  hide,  and  will  average  about  28  Ibs. 
It  is  usual  to  purchase  wood  for  this  purpose,  which  is  attended 
with  considerable  expense  and  trouble,  and  is  afterwards  worth 
nothing,  while  the  hides  at  the  above  price  will  pay  a  good 
freight.  I  have  employed  Messrs.  Edwards  ^  Stewart,  of  this 
place,  as  agents  to  purchase  the  Chesapeake? s  cargo,  of  whose 
integrity  and  honesty  as  merchants,  I  made  myself  perfectly 
satisfied  of  before  I  engaged  with  them;  their  influence  with 
the  governor  and  collector  here  is  very  great,  from  which  cir- 
cumstance I  expect  great  advantages  in  the  payment  of  the  du- 
ties, and  I  have  a  good  prospect  of  getting  through  my  business 
without  trouble  or  delay. 

"  Since  writing  the  above,  I  have  received  a  letter  from  Mr. 
JW-Clure;  he  says  he  has  on  hand  a  quantity  of  silks,  which, 
with  the  discount  on  government  paper,  (with  which  I  under- 
stood he  paid  for  them)  cost  about  $5000,  and  a  few  other  ar- 
ticles which  would  raise  the  amount  to  1000  more  ;  he  has  also 
from  2000  to  $2500  in  cash,  which  he  promises  to  put  imme- 
diately at  my  disposal ;  he  also  offers  to  make  an  immediate  sale 
of  the  silks,  &c.  for  cash  and  close  the  concern,  if  I  will  au- 
thorise him  to  do  so,  but  it  is  his  opinion,  that  to  force  a  sale  of 
the  silks,  &c.  for  that  purpose  would  be  attended  with  a  loss  of 
at  least  one  half,  and  as  I  am  only  empowered  by  you  to  re- 
ceive whatever  he  may  give  Die,  I  must  leave  him  to  exercise 
his  own  discretion  with  respect  to  selling  the  silks,  &c.  but 
strongly  recommend  him  to  effect  a  settlement,  if  possible, 
VOL.  I— 3. 


18  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Atlm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adra'rs. — 1829. 

while  the  Cliesapcake  remains  here,  as  I  am  convinced  you 
are  anxious  to  have  it  closed. 

Another  letter  from  the  plaintiffs'  intestate  to  the  defendant, 
dated  Coquimbo  the  4th  of  November,  1820. 

"  By  the  Two  Catliarines  I  informed  you  that  I  had  commen- 
ced the  purchase  of  the  Cliesapeake's  cargo  of  copper,  at  $  12 
per  quintal,  which  will  cost  on  board,  duties  paid,  about  $14|, 
depending  considerably  on  the  amount  of  that  saved  by  the  ar- 
rangement with  the  collector  here,  and  a  gain  of  from  five  to 
seven  per  cent,  on  the  amount  of  the  duties,  by  paying  part  of 
them  with  the  government  paper,  which  is  at  a  discount,  though 
so  uncertain  that  it  is  dangerous  to  purchase.it  until  the  moment 
it  is  to  be  paid  into  the  custom  bouse.    There  is  now  purchas- 
ed for  your  account  9500  quintals,  nearly  7000  of  which  is  on 
board,  and  the  remainder  in  Guasco,  whither  I  shall  proceed 
and  take  it  in  as  soon  as  I  get  my  crew  from  Valparaiso,  which 
I  am  daily  in  expectation  of,  and  hope,  in  about  a  month  more, 
to  be  on  my  passage  for  Baltimore.    We  have  received  ac- 
counts here  stating  that  the  United  States  had  proceeded  to 
take  possession  of  the  Floridas,  and  had  acknowledged  the  in- 
dependence of  this  country  and  Bvenos  Jlyres.    If  so,  I  think  it 
quite  likely  that  a  war  with  Spain  must  ensue,  and  of  course 
render  me  liable  to  capture  on  the  homeward  passage,  by  pri- 
vateers under  Spanish  colors.    Of  the  truth  of  this  I  hope  soon 
to  be  informed,  and  if  it  is  the  case,  I  shall  endeavour  to  sail 
home  in  company  with  the  Macedonian,  which  ship  is  shortly 
expected  here  from  Lima,  and  is  to  proceed  immediately  home. 
I  have  received  from  Mr.  J\TClure  the  sum  of  $5500  on  your 
account,  to  obtain  which,  he  informs  me,  he  sold  the  greater  part 
of  the  silks,  which  in  a  former  letter  I  mentioned  he  held  at  a 
great  loss ;  he  writes  me  also,  that  he  intends,  if  possible,  to  sell 
the  remainder  and  close  the  business,  though  I  cannot  inform  you 
to  what  amount  he  still  holds.    I  wrote  him  a  few  days  ago  to  in- 
form him  that  I  expected  to  sail  shortly,  that  he  might  make  his 
arrangements  accordingly.  I  have  got  nothing  from  Mr.  Boughan, 
nor  do  I  think  there  is  any  probability  that  I  shall.    He  writes 
me  that  he  is  paying  every  attention  to  the  suit  he  has  instituted 


OF  MARYLAND.  19 

Pawson's  Adm'rs  vs.  Donnell.    Donncil  vs.  Pawson's  Adtn'rs — 1829. 

against  the  consignee  of  the  Melanthro,  and  has  great  hopes, 
from  the  strong  vouchers  he  has  presented,  of  gaining  the  cause, 
but  if  he  does,  he  has  no  hopes  of  recovering  any  money  from 
the  circumstance  of  the  consignee  being  very  poor.  With  re- 
spect to  loading  the  ship,  I  have  paid  every  attention  to  have 
the  copper  of  the  best  quality,  and  stowed  in  the  safest  manner, 
but  I  think  it  altogether  unsafe  to  put  more  than  9500  to  10,000 
quintals  on  board,  as  it  is  a  very  laborious  cargo  from  its  dead 
weight  and  small  balk,  and  the  ship  begins  now  to  shew  her 
age.  I  have  purchased  about  600  hides,  which  cost  from  nine 
to  twelve  rials  each,  to  stow  with  it,  for  the  purpose  of  raising 
the  weight  and  increasing  the  bulk.  I  shall,  however,  be  guided 
by  my  judgment  as  the  ship  comes  down  in  the  water,  and  if 
possible,  bring  the  whole  of  your  funds  in  copper.  If  there 
should  be  any  surplus  funds,  which  will  not  be  more  than  the 
$5500  received  from  Mr.  JlTCZwre,  I  shall  bring  it  in  Plata 
Pina,  or  silver  in  bars,  the  former  at  g7  56-100,  and  the  latter 
$7  81-100  per  mark  of  8  ozs.  In  my  former  letters  I  requested 
you  to  insure  for  my  account  the  sum  of  $5000.  I  now  have  to 
request  you  will  insure  $1000  more.  If  I  find  the  ship  too 
heavy  laden  with  your  copper,  I  shall  curtail  my  privilege  in 
that  article,  and  bring  my  funds  in  silver.  I  send  this  across 
the  cordilleras,  but  I  understand  there  is  very  little  hopes  of 
your  receiving  it,  as  the  communication  is  very  much  interrupt- 
ed by  banditti." 

A  letter  from  Horstman  to  one  of  the  plaintiffs,  dated  Lon- 
don the  29th  of  July,  1822. 

"  I  have  to  acknowledge  your  letter  of  the  1 8th  May,  in 
which  you  request  to  be  furnished  with  a  copy  of  the  account 
between  the  late  Captain  Pawson  and  myself,  and  such  docu- 
ments as  would  enable  you  to  come  to  a  settlement,  as  acting 
administrator,  with  Mr.  Donnell.  In  reply  I  beg  to  state,  that 
I  had  not  any  account  running  with  Captain  Pawson,  as  he  act- 
ed entirely  himself;  but  on  reference  to  my  books,  I  find  the 
following  items  were  paid  by  me,  and  repaid  by  Captain  Paio- 
son,  the  19th  April,  1820,  viz:  Barry,  for  charts,  &c.  amounting  to 


20  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donncll.     Donnell  rs.  Pawson's  Adm'rs — 1829. 

£69  1  2,  which  were  the  only  pecuniary  transactions  with 
him  direct. 

"  In  regard  lo  the  bills  of  disbursements  of  the  ship  Chesa- 
peake^ which  you  mention  were  never  received  by  Mr.  Don- 
nell, I  find  that  I  sent  to  Mr.  Donnell,  on  the  1 3th  of  May, 
1820,  the  following,  viz  :  One  letter,  13th  May,  witb/account 
of  disbursements  of  the  Chesapeake,  £2219  13,  and  a  list  of 
the  vouchers ;— one  parcel,  containing  the  vouchers,  (original 
accounts) — one  letter  from  Captain  Pawson  to  Mr.  Donnell — 
two  letters  from  Captain  Pawson  to  different  persons,  (I  think 
Captain  Hamilton  and  Mrs.  Pawson.)  These  were  sent  to  Liv- 
erpool for  the  purpose  of  being  forwarded,  and  I  find  by  letter 
from  Liverpool  that  were  sent  per  the  Mary,  which  sailed  the 
15th  of  May,  with  the  exception  of  one  addressed  to  Mr.  Don- 
nell, which  were  sent  per  the  Jlnna  Maria,  (the  latter  is  pre- 
sumed to  be  the  one  containing  the  vouchers.)  From  Mr.  Don- 
nell I  have  received  no  other  letter  than  of  the  1 8th  of  Novem- 
ber, 1819,  brought  by  Captain  Pawson,  and  26th  of  December, 
1819,  enclosing  a  letter  for  Captain  Pawson,  Captain  Pawson 
had  a  bill  on  me,  drawn  by  Mr.  Donnell,  for  £1165  9  1,  at 
sixty  days,  which  was  due  30th  of  March  1819,  and  paid  to 
him.  I  hope  these  details  will  answer  your  purpose." 

A  letter  from  Edwards  8f  Stewart  to  the  defendant,  dated  Co- 
quimbo  the  8th  of  December,  1820. 

"  With  sincere  regret  we  have  to  inform  you  of  the  death  of 
our  much  lamented  friend,  Captain  John  C.  Pawson,  who  de- 
parted this  life  on  the  fourth  of  the  present  month ;  to  us  it  is 
particularly  sensible,  in  consequence  of  his  being,  from  the  first 
of  his  attack,  until  his  decease,  in  a  state  of  torpidity,  from  the 
nature  and  violence  of  his  disorder,  which  prevented  our  ma- 
king any  arrangements  with  him  in  relation  to  his  affairs  at  this 
place.  We  attribute,  as  the  principal  cause  of  Captain  Paw- 
son's  death,  his  extreme  anxiety  on  the  subject  of  his  crew,  the 
receiving  of  which  he  had  placed  great  reliance  by  a  ship 
which  arrived  a  few  days  before  his  decease,  from  Valparaiso, 
to  which  place  he  had  written  to  a  mutual  friend,  to  ship  him  a 
crew,  having  lost  by  desertion  the  day  after  his  arrival  at  this 


OF  MARYLAND.  21 


Pawson's  Adm'rs  rs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs — 1829. 

port.  We  were  much  disappointed  at  hearing  that  no  men 
were  to  be  found  at  Valparaiso,  from  the  great  enlistments 
made  by  the  navy  agent  for  the  Chilian  navy,  which  left  us  the 
only  and  very  uncertain  resource,  of  Captain  Dowries  supplying 
him  with  a  quota  sufficient  for  taking  the  ship  home.  Captain 
Dowries'  arrival  was  at  that  time  daily  expected,  but  an  arrival 
from  the  coast  of  Pern,  where  the  Macedonian  had  gone, 
brought  us  sad  intelligence  of  Captain  Dowries  not  being  able 
to  visit  this  part  of  the  coast  for  some  months.  This  news 
created  in  Captain  Pawson  a  very  sensible  change  in  his  state 
of  health,  which  had  been  delicate  from  his  arrival,  by  great 
depression  of  spirits,  which  was  accompanied  by  a  fever, 
which  changed  into  the  gout,  entered  the  stomach,  and  after 
being  confined  four  days  to  his  bed,  yielded  to  his  Maker  the 
debt  of  nature,  and  trust  he  is  enjoying,  through  the  medium  of 
our  Saviour,  happiness  in  that  world,  where,  sooner  or  later,  we 
are  all  to  appear." 

Also  the  extract  of  a  letter  from  Edwards  Sf  Stewart  to  the 
defendant,  dated  Coquimbo,  January  19th,  1821. 

"  We  likewise  enclose  you  herewith  account  sales  of  various 
merchandize  brought  by  Captain  Pawson  from  London.  His 
accounts,  bill  of  lading  for  two  boxes  of  Chinchilla  skins,  to  your 
consignment.  We  also  enclose  you  the  bills  of  the  goods  for 
your  government.  We  confess  we  feel  awkwardly  situated 
from  our  perfect  ignorance  of  Captain  Pawson's  business,  and 
act  only  from  conversations  we^have  had  with  Capt.  Pawson,  and 
from  our  judgment.  We  presume  the  property  belonged  to 
him  which  came  in  the  ship,  for  the  sale  of  which  he  has  got 
credit.  His  intention  was,  as  well  as  we  can  recollect,  to  in- 
vest the  proceeds  in  250  quintals  of  copper,  provided  the  ship 
would  load  more  than  the  10,000  quintals,  if  on  the  contrary  he 
intended  taking  only  150  quintals  for  his  account,  the  Chinchilla 
skins  charged  him  in  his  account,  and  the  balance  of  his  funds 
in  silver,  if  to  have  been  had.  This  we  believe  firmly  were 
his  views,  and  on  which  we  should  have  acted,  but  fearing  com- 
promising ourselves,  we  have  considered  it  most  prudent  pass- 
ing the  balance  of  his  account  to  your  credit,  and  leaving  it  to 


22  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

your  judgment  to  settle  with  his  relations  in  the  manner  you 
think  most  equitable  and  just,  founded  on  the  above  facts. 
We  recollect  Captain  Pawson  stating  to  us,  that  the  cordage 
sold  to  the  government  was  shipped  on  half  profits  by  some 
manufacturer  in  England,  and  in  order  to  throw  light  upon 
that  part  of  his  business,  should  you  be  addressed  from  Eng- 
land by  the  same,  we  have  enclosed  you  separate  sales  of  that 
article." 

Also,  the  extract  of  another  letter  from  Edwards  fy  Stewart 
to  the  defendant,  dated  Gwasco,  January  28th,  1821. 

"  Enclosed  you  will  receive  a  bill  of  lading  for  900  pigs  of 
copper,  and  thirty-six  lumps  of  gold,  as  likewise  another  for 
seventy-four  pigs  of  copper,  and  one  large,  and  nines  mall  pigs 
of  bar  silver,  and  sixteen  pieces  of  Pina  silver,  shipped  the  for- 
mer for  your  sole  account,  and  the  latter  for  account  of  the  late 
Captain  Pawson;  by  the  invoices  and  account  which  we  like- 
wise enclose  you,  you  will  perceive  that  the  whole  of  your 
funds  we  have  remitted  to  the  best  advantage,  and  we  have 
only  to  beg  you  to  call  to  mind,  in  case  that  every  thing  is  not 
exactly  correct,  the  disadvantages  we  have  been  under  from 
the  sudden  death  of  Captain  Pawson." 

Also,  an  extract  from  another  letter  from  Edwards  fy  Stewart 
to  the  defendant,  dated  Coquimbo,  March  9,  1821. 

"  As  we  anticipated,  the  crew  has  deserted  the  ship,  and  has 
remaining  on  board  only  nine  men  from  the  Constellation.  We 
hope  to  get  the  residue  she  may  want  to  carry  her  home.  The 
carpenter  of  the  ship,  from  a  pique  he  had  against  Captain  Lane, 
and  to  revenge  himself,  gave  information  of  the  spot  where  your 
gold  and  Captain  Pawson's  silver  were  stowed  on  board,  to  the 
governor.  This  was  done  with  so  much  secrecy  by  both  par- 
ties, that  we  were  not  aware  of  the  treachery,  until  the  whole 
was  in  their  possession.  It  was  shipped  in  Guasco,  and  stow- 
ed by  Captain  Lane  in  the  bread  locker,  under  all  the  bread, 
without  the  knowledge  of  any  one  on  board  excepting  the  car- 
penter, in  whom  both  he  and  Captain  Pawson  placed  the  most 
implicit  confidence.  The  exportation  of  virgin  silver  and  gold 
have  been  prohibited  by  the  government  under  confiscation  of 


OF  MARYLAND.  23 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs. — 1829. 

the  property  if  taken,  and  many  severe  penalties  inflicted  on 
the  parties  concerned.  Captain  Pawson  intended  shipping  any 
small  balance  he  might  have  in  those  articles,  from  their  pay- 
ing better  than  any  other  remittance  to  America,  from  this,  hard 
dollars  being  at  6£  premium,  and  ounces  at  $>17J,  so  that  in 
shipping  either  one  or  the  other,  you  would  have  experienced 
a  great  loss.  We  are  aware  we  took  upon  ourselves  some  re- 
sponsibility from  not  having  had  written  instructions  from  Capt. 
Pawson  to  ship  in  these  articles  your  balance,  but  were  actua- 
ted for  your  interest,  and  knowing  Captain  Pawson  would  have 
acted  in  like  manner.  We  fear  the  hopes  of  recovering  this 
property  are  small,  as  the  law  is  explicit  and  severe.  We  shall 
make  the  necessary  representations,  and  send  you  copies  by 
next  opportunity." 

And  another  letter  from  Edwards  &f  Stewart  to  the  defendant, 
dated  Coquimbo,  July  4,  1821. 

"  We  enclose  you  the  proceedings  of  the  confiscation  of  the 
silver  and  gold  found  on  board  the  ship,  which  we  are  sorry  to 
say  was  eventually  lost,  notwithstanding  the  exertions  of  Capt. 
Ridgely,  Judge  Prevost,  special  agent  of  the  United  States  of 
America,^  and  our  representations.  We  are  still  in  hopes  that  at 
a  future  period  this  property  may  be  recovered,  and  with  this 
view  have  thought  proper  to  send  you  the  documents  to  sub- 
stantiate any  claim  you  may  think  proper  to  institute." 

The  plaintiffs  further  offered  in  evidence,  that  if  was  the  known 
custom  of  trade  in  Chili  and  at  Coquimbo,  to  employ  agents  on 
shore  in  the  business  intrusted  to  Pawson,and  that  it  was  necessary 
to  do  so.  And  also  offered  in  evidence,  that  the  privilege  to  the 
captain  of  twenty-five  tons,  mentioned  in  the  contract  from  Can- 
ton to  Baltimore,  was  a  valuable  privilege,  much  more  so  than  the 
like  one  from  Coquimbo,  and  that  it  was,  and  is,  the  usage  of  trade 
for  the  captain,  if  he  does  not  use  his  privilege  himself,  to  let  it 
out  to  others,  and  even  to  be  paid  for  it  by  the  owner,  if  the 
owner  used  it  for  his  benefit.  That  the  freight  from  Canton  to 
Baltimore,  at  the  time  abovementioned,  was  from  thirty  to  one 
hundred  dollars  per  ton.  The  plaintiffs'  further  offered  evi- 
dence, that  it  is  the  usage  of  trade,  when  a  captain  has  such  a 


24  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

privilege  as  is  stated  in  the  defendants'  first  letter  of  instruc- 
tions, to  wit,  of  twenty-five  tons  from  Canton  to  Baltimore, 
that  this  privilege  is  entitled  to  a  preference  even  over  the 
owner,  in  putting  the  same  into  the  vessel,  and  that  if  the  cap- 
tain dies  in  the  course  of  the  voyage,  hi|  privilege  does  not  suc- 
ceed to  the  next  captain,  but  survives  to  his  representatives. 

The  plaintiffs  further  offered  in  evidence,  that  on  the  arrival 
of  the  ship  here,  only  147  quintals  of  copper  were  delivered  to 
the  plaintiffs,  as  the  share  of  the  said  Pawson ;  and  they  read  in 
evidence,  the  following  order  and  account,  which  were  admitted 
by  consent — "74  pigs  copper,  weighing  14,779  Ibs.  of  the  estate 
of  Captain  Pawson,  received  per  the  ship  Estlier,  Captain  Low, 
from  Coquimbo" — signed  29th  October,  1821,  by  the  defen- 
dant 

The  plaintiffs  also  offered  in  evidence  the  following  accounts : 


OF  MARYLAND.                              25 

Pawson's  Adm'ra  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs.  —  1829. 

Dr.  John  C.  Pawson  (deceased)  in  account  with  John  Donnell.  Cr. 

To  balance  per  settlement 
in  London,  Sterg.       £  3  10  11 
Short  credit  allowed  fir 
passengers  from  Lon- 
don,       -       •        •      25  00  00 
•  $120  87 

By  wages  from  19th  Nov.  1819,  till 
4th  Dec.  1820,  his  decease  at 

$eo,       $750  oo 

Dividends  drawn  by  J.  D.  on  16 
shares  Bank  Stock,  one  li,  one 
$2,     56  00 
Transfer  by  Edwards  4> 
Stewart,  of  the  balance 
due  by  them  to  Capt. 
Pawson,  after  his  de- 
cease,   (very  impro- 
perly to  me,)  -    -    -  $7,777  87 
In  which  was  included 
the  proceeds  of  cord- 
age,! taken  on  board 
for  account  some  per- 
son in  London,  to  be 
deducted  therefrom,    2,215  18 
»       -•  •   -  5  562  69 

Premium  of  Insurance 
to  Maryland  Office  on 
$5166,  a  4  p.  ct.     '         $307  89 
Premium  of  Insurance 
to  Patapsco  Office  on, 
$6000  a  2$  p.  c.      .         166  25 

374  14 
Common  J  pr.  cent,  on 
the  sums  insured,            55  83 

—  —  -  •           429  97 

Discounts   paid   on  16 
shares    Bank   Stock, 
hypothecat.  for  §1200 
in  Nov.  1819,  renewed 
each  60  days,  say  14 
renewals  a  13  80.                           179  30 
Proportion  of  landing 
copper  fromshipCAe- 
sapeake,  and  reship- 
ping   on    board   the 
Esther,  total  550,600 
)bs.    cost    $2454   69, 
which  on  Capt.  Paw* 
•on  14779  will  be                             66  00 
Freight  paid  the  ship 
Esther  from  Coqvimbo 
to  Baltimore  on  14779 
Ibs.  at  24  cents  per  Ib.      369  47 
Primage  thereon,  6  p.c.        1847 
Storage,  storing,  weigh- 
ing and  delivering,           10  00 
397  94 
Amount  invoice  of  cop. 
per  and  bullion  ship- 
ped   by   Edwards    4- 
Stewart  for  account,                  4,694  66 
CronometercostSO/stff.      355  65 
Day  and  night  telescope 
of  J.  Allen,    .    -    -          22  00 
Horsbvrg  Directory  of 
Baud  ;•••••           2400 

Amount  saleS  of  said 
cordage  as  above,         2,215  18 
After  deducting  there- 
from for  freight  from 
London  to   Coquimbo, 
being    a    belligerent 
port,  and,  an  article 
contraband  of  war, 
which  subjected  my 
ship  and  property  to 
confiscation,  and  an- 
nulled my  insurance, 
the  weight  of  cordage- 
asp,  sales  a$5,  $569  37 
Cost  of  lumps  of 
gold,  shipped 
as  aremitance 
for  proceeds  of 
said    cordage, 
being  a  prohi- 
bited   article, 
and  as  seized 
cost,    -    -    -  145284 
Edwards  Sf  Stew- 
art commiss'n 
thereon,  at  2^ 
p.  cent.     -    -      36  32 
Expenses  incur- 
.  red  by  claim- 
ing its  restora- 
tion,   -    -    .      44  16 
—    •     2  102  69 

401  55 
Balance  due  by  J.  D.  •       -       -    18500 

$6,481  18 

$6,481  18 

PJ.  B.  Captain  Pawson  took  from  my  ship 
JViirtli  Point  —  He  took  from  the  JV*or(/t  Point  ( 
peake  —  It  is,  therefore,  nearly  out  of  my  pow 
by  big  papers,  the  articles  he  paid  for,  and  s 
Chesapeake. 
2  mos.  interest  on  $165,       •              $1  65 
10  mos.      do        on    166  70,      -        -    8  25 
6  mos.      do        on  17f)l,       •               43  10 

such  valuable  articles  as  he  fancied  for  the 
very  article,  when  he  left  her,  for  the  Chesa- 
jrto  trace  them—  But  you  can  certainly  show 
ich  had,  of  course,  a  right  to  take  from  the 
J.  Donnell, 
Interest  calculated  on  bonds  until  due,  se- 
cured by  J.  D.  and  for  which  he  hue,  in 
settlement,   retained   their  amount  in   his 
hands—  the  $53  to  Le  applied  to  paying  the 
discount  on  J.  C.  Pawson's  Ptock  note  at 
the  Office  Discount  and  Deposit,  is  to  be  re- 
newed by  J.  D.  and  with  the  $53,  and  the 
$55  now  received,  it  is  expected  will  pay  the 
above  discount,  until  his,  J.  C.  P'a  return. 

$53  00 
Interest  on  1200  for  18  mos.    -    -    -    108  00 

$5500 

Received  the  above  $55,  which  with  the 
$53,  interest  until  his  bond  fall  due,  is  to  be 
applied  by  me  to  the  discount,  on  renewal  of 
his  stock  note  for  hypothecated  Bank  Stock, 
17th  Nov.  1819.  John  Dtmntll. 

VOL.  I.— 4, 


26  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.    Donncll  vs.  Pawson's  Admr's 1829. 

"  Sales  by  Harrison  fy  Sterctt,  for  account  of  the  administra- 
tors of  the  late  Captain  J.  C.  Pawson,"  in  December,  1821  and 
April  and  May,  1822,  of  14,774  Ibs.  of  copper,  amounting,  de- 
ducting charges,  &c.  to  $2,843  75. 

The  plaintiffs  further  offered  in  evidence  bills  of  lading,  and 
invoice  of  the  shipments  at  Coquimbo  and  Guasco,  on  the  voy- 
age aforesaid.  1.  Of  8000  Spanish  doubloons  shipped  by  Horst- 
man  from  London  on  the  4th  of  May,  1820,  for  the  port  of 
Coquimbo ,  to  the  order  of  Captain  Pawson,  on  account  of  John 
Donnell.  2.  Of  4219  pigs  of  copper,  weighing  8076  quintals, 
&c.  and  41 1  cow  hides,  by  Edwards  Sf  Stewart  from  Coquim- 
bo ,  on  the  19th  of  January,  1821,  for  account  of  John  Don- 
nell. 3.  Of  two  boxes  and  one  bundle  of  Chinchilla  skins, 
containing  456 1  dozen,  being  the  property  of  the  late  Captain 
Pawson,  and  consigned  to  John  Donnell  for  the  benefit  of  whom 
it  may  concern,  by  Edwards  Sf  Stewart,  from  Coquimbo,  on  the 
19th  of  January,  1821.  4.  Of  74  pigs  of  copper,  weighing 
147  quintals,  &c.  one  large  and  nine  small  pigs  of  bar  silver, 
and  sixteen  pieces  of  Pina  silver,  weighing  304  marks,  one 
ounce,  shipped  by  Edwards  fy  Stewart  from  Guasco,  on  the 
28th  of  January,  1821,  to  John  Donnell  5.  Of  thirty-six 
lumps  of  gold,  weighing  608  castellanos,  five  tomines,  and  900 
pigs  copper,  weighing  1795  quintals,  ninety-five  Ibs.  shipped  by 
Edwards  Sf  Stewart  from  Guasco,  dated  the  28th  of  January, 
1821,  consigned  to  defendant. 

"Invoice  of  copper  and  hides  shipped  by  Edwards  &  Stew- 
art, on  board  the  Jlin&rican  ship  CJiesapeake,  Captain  Thos.  A. 
Lane,  by  order  of  the  late  Captain  J.  C.  Pawson,  bound  for 
Baltimore,,  in  the  United  States  of  America,  and  consigned  to 
John  Donnel,  Esq.  merchant,  of  said  place. 
4219  pigs  of  copper,  wg.8076qqs.l91bs.a!2ds.  $96,914  02| 
246  ox,  and  41 1  cow  hides,  -  932  01 

$97,846  03J 
Charges,  duties,  commission,  &c.  added,    -        -    19,259  08| 

$117,10604 


OF  MARYLAND.  27 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs. — 1829. 

"Invoice  of  copper  and  gold  shipped  in  Gwasco,by  Edwards 
fy  Stewart,  on  board  the  American  ship  Chesapeake,  Captain 
Thomas  A.  Lane,  by  order  of  the  late  Captain  J".  C.  Pawson, 
bound  for  Baltimore,  in  the  United  States  of  North  America, 
and  consigned  to  John  Donnell,  Esq.  of  said  place. 
900  Pigs  of  Copper,  wg.  1795  qqs. 

951bs.  at  $12,  $21,551  03£ 

Storage  1  p.  c.    -        -        -        -  215  04 

$21,766  07i 

20  round  lumps  of  gold,  wg.  172  cas- 

tellanos  7|  tomines  a  19£  rs.  416  01 

15  do  do  wg.  403  do  5|  do  a  19  rs.         958  05£ 
1  do  dowg.    32  do  a!2|rs.          78 


$23,21905| 
Charges,  duties  and  commission,  &c.  added,  4,885  03| 

$28,105011 

"Invoice  of  copper  and  silver  shipped  in  Guasco,  by  Edwards 
fy  Stewart  on  board  the  American  ship  Chesapeake,  Captain 
Thomas  A.  Lane,  bound  for  Baltimore,  in  the  United  States  of 
America,  by  order  of  the  late  Captain  J.  C.  Pawson,  for  ace. 
and  risk  of  whom  it  may  concern,  and  consigned  to  John  Don- 
nell, Esq.  merchant,  of  said  place. 

74  pigs  of  copper,  wg.  147  qqls.  79,lbs.  a  $12,         $1,773  04 

Storage  1  p.  c.  17  06 

1  large  and  9  small  pigs  silver,  wg. 

115  mks.  1  oz.  a  $8  p.  mk.  $921  00 

16  pieces  of  pina  silver  wg.  189  mks.  Ooz.  1488  03 

-$2,409  03" 
Charges,  duties  and  commission,  &c.  added,  493  07| 

$4,694  04£ 

"  Amount  of  money  paid  by  Captain  Pawson  to  the  crew  of 
the  ship  Chesapeake,  which  returned  here  from  Coquimbo, 
$70  59."  Signed  by  /.  D. 


•iS  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adin'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

And  also  proved  that  the  voyage  was  in  effect  protracted  by 
the  determination  to  return  immediately  to  Baltimore,  and  not 
go  to  Canton,  as  it  was  much  more  difficult  to  obtain  a  crew 
for  the  former  voyage  than  the  latter,  and  the  ship  was  delayed 
for  a  long  time,  for  the  want  of  a  crew  to  navigate  her  to  Bal- 
timore. 

The  defendant  then  offered  and  read  in  evidence  the  follow- 
ing letters,  which  were  read  by  consent,  and  admitted  to  be  in 
the  hand  writing  of  the  respective  parties  thereto. 

The  only  letter  which  appears  to  have  been  offered  in  evidence 
by  the  defendant,  is  one  from  one  of  the  plaintiff's  to  the  de- 
fendant, dated  Baltimore,  15th  May,  1822. 

"From  a  minute  investigation  of  the  account  you  furnished, 
between  yourself  and  the  late  Captain  Pawson,  and  with  a 
reference  to  sundry  documents  in  my  possession,  I  have  made 
out  the  enclosed  account.  With  respect  to  the  $2,000  for 
compensation,  it  appears  to  have  been  regularly  agreed  upon 
between  you  and  tJie  deceased,  as  the  privilege  he  was  to  have, 
each  voyage,  in  your  ships,  consequently  it  is  claimed  as  a  right. 
The  cordage  transaction,  in  your  account,  is  totally  inadmissi- 
ble, the  funds  which  arose  from  the  sale  of  it,  were  laid  out  in 
bullion,  (silver)  which  remains  in  Coquimbo  under  seizure,  as 
your  gold  does,  and  as  you  are  not  known  in  the  transaction  at 
all,  it  of  course  remains  for  settlement  between  the  owner  in 
London  and  the  executors  of  Captain  Pawson.  As  to  your 
charging  freight  on  the  cordage  from  London  to  Coquimbo,  it 
seems  strange  indeed.  Your  ship  was  going  in  ballast,  and 
Captain  Pawson  wrote  to  you  that  he  would  take  merchandize, 
having  found  great  difficulty  in  procuring  the  number  of  doub- 
loons you  ordered  from  Mr.  Hortsman.  I  find  that  in  1816, 
you  permitted  Captain  Pawson  to  take  goods  from  other  persons 
to  make  up  his  privilege  in  the  ship,  and  as,  by  his  agreement 
with  the  owner  of  the  cordage,  he  was  interested  in  the  sales,  it 
became,  of  course,  a  part  of  his  venture  from  thence.  It 
appears  that  Captain  Pawson  allowed  you  £25  sterling  in  the 
account  he  furnished  before  he  left  London.  Balance  due  to 
you  £31011.  £50  sterling  he  laid  out  for  cabin  stores.  The 
$55  83  claimed  as  commission  for  effecting  insurance,  you 


OF  MARYLAND. 


29 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

never  charged  in  any  similar  case.  I  have  not  ascertained 
whether  the  expenses  charged  on  the  copper,  are  customary  or 
not.  You'll  observe,  that  Captain  Pawson^s  privilege  in  the 
ship  was  not  taken  by  several  thousand  pounds  weight,  of  course 
you  will  allow  for  the  deficiency,  as  you  have  done  before." 

Mr.  John  Donnell  in  account  with  the  estate  of  the  late  Captain 
Dr.  John  C.  Pawson.  Cr. 


1819. 
Nov.  18.  To  cash  paid  interest  on 
16  shares  United  States 
Bank  Stock,  hypothe- 
cated for  $1200  p.  your 

By  balance  due  to  you  as  per  ac- 
count furnished  by  Captain 
Pawson,  in  Lundon,  includ- 
ing JE25  sterling,  your  pro- 
portion of  passage  money, 
Cash  on  16  shares  United  States 
bank  stock,  hypothecated  for 
this  amount,  18th  Nov.  1819, 
Interest  on  do.  from  said  pe- 
riod, until  15th  Oct.  1821, 
Insurance  in  Maryland  If  Pa- 
tapsco   Offices,  per  your  ac- 

$16  75 

1,200  00 
137  44 

374  14 

4,694  56 
4,352  97 

in  774  so 

Interest  on  do.  from  said 
date  until  15th  Octo- 

Compensation    in    ship 
Chesapeake  as   per  a- 
greement,see  your  let- 
ter of  instructions,  da- 
ted 18th  Nov.  1319,  and 
as  a  proof  of  its  being 
customary,  see  21  Oc- 
tober, 1817,  when  Mr. 
Nancarrow   went   su- 
percargo, $2000,    and 
the   25th    May,   1816, 
when  Mr.  Stith,  went 
supercargo,  $3000,      -      2,000  00 
Wages  of  Capt.  Pawson, 
as  per  your  account,  -         750  00 
Dividend  received  on  16 
shares    United    States 
bank  stock  ,  as  per  your 

Amount  of  copper  and  bullion 
(silver)  shipped  by  Edwards 
4-   Stewart,  for  account    of 
Captain   Pawson,  see    their 
and  your  account,  -    -    -    • 
Balance  in  your  hands  on  the 
15th  October,  1821,  -    -    -    - 

• 

Amount  transferred  by 
Edwards  Sf  Stewart,  of 
Cui/iiimlni.    a    balance 
due  by  them  to  Capt. 
Pawson;  see  your  and 
their  account,    -    -    •     7,777  87 
Amount  deducted  out  of 
seamen's  wages,  as  per 
your  account,    •    •    • 

To   balance  from  oppo- 
site,    $4,362  97 

To  interest  on  ditto  until 
paid, 

Error*  and  E  Excepted. 


Add  the  stock  on  the  other 
side,  for  which  there  is 
no  credit,  r  • 


$1,<200  00 
4,352  97 


Ili-i  claim  then  ia  $ 5,653  97 

Interest  to  Jan.  26, 1825,      1,084  03 


Besides  which  he  claimed 
loss  of  privilege,     >    - 

Drip  Atones, 

Duty  saved  at  Ovasco,    • 
Interest  on  $255  62-100, 


$6,637  00 

255  52 

13  60 

14  66 
49  73 

$6,970  30 


Hamilton,  Graham,  Actg  Adm'r. 

Claim  as  set  up  in  court,  viz.'$6,552  97 
Drip  Htonos  and  duty  saved,  48  06 
Loss  of  Canton  privilege,  3,050  00 

$9,661  03 
Interest  from  Oct.  15, 1821,      1,686  94 

$10,337  97 


30  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson's  Adin'rs — 1829. 

"The  defendant  then  ollered  in  evidence  the  following  invoice 
of  goods  shipped  at  London,  the  27th  of  April,  1820,  and  the 
account  of  the  sales  thereof,  and  the  other  accounts  and  papers 
hereinafter  inserted,  which  were  admitted  by  consent 
"1   bale,  8  cases  British  piece  goods,"  &c. 

amounting  to  -      £1062  10  8 

Commission,  brokerage,  shipping,  &c.  5  p.  c.  53    2  7 

£1115  13  3" 

"Account  sales  of  sundries  made  by  Edwards  ^  Stewart  to  the 
government  of  Chili,  for  account  of  Captain  John  C.  Pawson, 
of  the  ship  Cliesapeake, 

1820 

Agt.  25.  45  coils  cordage,  wg.  113  qqs.  87  Ibs. 

a  20  dlls.      -  -     |2277  03| 

1  day  and  night  glass,  -       30  00 

$2307  03| 
Deduct  commission  4  p.c.  and  spy  glass,    -  122  02 


Nett  proceeds  of  cordage,     -        -  -       $2185  01  £ 

Dr.       /.  C.  Pawson's  private  ace.  with  Edwards  fy  Stewart,     Cr. 
This  account  commenced  on  the  25th  of  August,  1820,  and 

ended  on  the  18th  of  January,  1821. 
The  amount  of  the  debits,  including  charges  for 

756  £  dozen  Chinchilla  skins,  and  10  marks,  G]  oz. 

silver,  &c.  -       $2,250  07| 

Amount  of  credits  including  nett  proceeds  of  sales 

herewith  sent,  $8070  1 1,     -        -        -   "     -     10,028  06| 


Balance  due,  and  this  sum  credited  John  Don- 
nell, Esq.  $7,777  07 

"Sales  of  sundry  merchandize  received  by  the  ship  Chesapeake, 
and  sold  by  order  and  for  account  of  Captain  John  C.  Paw- 
son." 
The  whole  amount  of  sales,  deducting  charges,  &c.$8070  1 3  J 

dated  Coquimbo,  and  signed  by  Edwards  fy  Stewart, 


OF  MARYLAND. 


31 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 


John  Donnell,  Esq.  of  Baltimore,  in  account  current  with  Edwards 
Dr.  fy  Stewart.  Cr. 


1821. 

Jan.  19.  To  bill  of  disbursements 
of  the  ship  Chesa- 
peake, at  Coquimbo, 
per  account  here- 
with, -  -  -  $2,508  032 
Amount  of  invoice  of 
8076  qqs.  19  Ibs.  of 
copper,shipped  from 
this  port  in  the  ship 
Chesapeake,  Captain 
Lane,  as  per  account 
herewith,  ....  117,106  04 
Balance, 32,655  05£ 


§152,270  05J 


18-20. 

Aug.  28.  By  our  draught  in  favor 
of  Capt.  Brintnal  on 
Captain  Pawson,    •     $28,309  03 
Sep.  16.  Cash  received  from  do.       6,192  06 
21.  Letter    of     credit    of 
Messrs.  Lynch,Hill  S[ 
Co.  in  favor  of  Capt. 
Pawson,    -    -.-         3,500  00 
Oct.  26.  700  doubloons  received 

at  $17J 12,075  00 

2000     do  do         do      34,500  00 

1300    do          do        do     22,425  00 
Received  for  4  bbls.  of 

salt  beef,  a  35  dlls.  140  00 

Received  for  4  water 

casks  a  15,    -    -    -    -  60  00 

Months'  advance  made 

to  a  sailor  returned,  24  03 

Cash  received  of  him,  60  00 

Nov.  27.  2000  doubloons  a  $17  J,    34,500  00 
Draught  of  Ed.  M'  Clure 

favor  J.  C.  Pawson,          2,000  00 
1821.        >• 
Jan.  18.  Cash  received  for  2  bbls. 

tar,  a  $10,    ....  20  00 

Do  do  30  ggs.  vine- 
gar, a  50  eta.  ...  15  00 
Discount  on  $6713,1  rrl. 
paid  in  the  custom 
house  in  government 
paper,  being  this  pro- 
portion allowed  to  be 
received  in  paper,the 
residue  paid  in  cash, 
a  10  p.  c.  -  -  -  -  671  02£ 
Balance  of  Capt.  Paw- 
son's  acct.  current,  7,777  07 


$152,270  05J 
By  balance,     .    -    .    $  32,655  05£ 


E.  &  0.  E.  Coquimbo,  Jan.  19, 1821. 


Edwards  &f  Stewart. 


John  Donnell,  Esq.  of  Baltimore,  in  account  with  Edwards  Sf 
Dr.  Stewart.  Cr. 


To  amount  of  invoice  of  copper 
and  gold  shipped  in  Guaseo,  $28,105  01  ^ 

To  amount  of  invoice  of  copper 
and  silver,  shipped  on  account 
of  the  late  Captain  Pawson,  4,694  4£ 

To  amount  of  bill  for  disburse- 
ment in  Guaseo, 9l.05| 


$32,891  034 


By  balance  of  account  current  at 

Coi/uimbo, $32,655  05£ 

By  10  per  cent,  discount,  allow- 
ed on  $1,777  paid  in  govern- 
ment  paper  on  the  invoice  of 
$28,105,  a  l£  rs. 177  05* 

By  do  do  on  that  of  the 
late  Captain  Pawson,  ...  14  04i_ 

By  one  months  advance  charged 
twice  to  Eugenia,  merchant,  30  00 

By  charge  for  drip  stones  not  re- 
ceived, --• 13  04 

$32,891  03^ 


E.  E.  Guasco,  Jan.  22, 1821. 


Edwards  Sf  Stewart. 


CASES  IN  THE  COURT  OF  APPEALS 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  r».  Pawson'g  Adm'rs. — 1829. 

Disbursements  of  the  American  ship  Chesapeake,  in  the  port 
of  Coquimbo,  by  order  of  Captain  Lane,  from  the  16th  Feb- 
ruary to  30th  June,  1821,  amounting,  including  commissions,  to 
$1,654  02£.  Dated  at  Coquimbo  the  3d  of  July,  1821,  and 
signed  by  Edwards  fy  Stewart. 

Captain  Lane,  ship   Chesapeake,  in   account   with  Edwards  &f 
Dr.  Stewart.  Cr. 


To  amount  charge*  on  2876  bars 
of  copper,  shipped  on  board  the 
ship  tether, $3,464  05$ 

Do  do  on  300  bars  shipped  on 

board  ship  Chesapeake,  -  -  -  315  02£ 

Amount  of  durtrursements  of  ship 

L'ktsapcakc, 1,655  02£ 


$4,425  024 


By  124  ban  of  copper,  vrg.  304  qqs. 
34  Ibs.  a  $14  4-100,  sold  to  pay 
the  expenses  at  the  price  of  $12, 
and  the  duties, 44,271  04 

An  error  in  the  calculation  of 
commissions  in  the.  invoice  of 
copper  shipped  at  Quasco,  •  •  100  00 

Cash  reed,  for  639  Ibs.  of  bread  a  $6       50  0,2  j 
Balance -        3  03| 


$4,425  024 


*'  Amount  of  charges  of  2100  bars  of  copper,  discharged  in 
this  port,  and  900  bars  discharged  in  Guasco,  from  on  board 
the  American  ship  Chesapeake,  Captain  T.  Jl.  Lane,  in  order  to 
ascertain  the  extent  of  injury,  received  on  her  passage  from 
Guasco  to  Baltimore,  of  which  bars  of  the  same  were  reshipped 
by  order  of  Captain  Lane,  on  board  the  American  ship  Esther, 
Captain  F.  G.  Low,  bound  for  Baltimore,  for  account  and  risk 
of  whom  it  may  concern,  and  consigned  to  John  Donnell,  Esq. 
merchant,  of  Baltimore,"  amounting  to  $2454  05J,  dated  at  Co- 
quimbo, and  signed  by  Edwards  fy  Stewart  the  3d  of  July,  1821. 
This  account  included  a  commission  on  2876  bars  of  copper, 
amounting  to  $1651  06. 

"  Account  of  charges  of  300  bars  of  copper  that  were  dis- 
charged from  on  board  the  American  ship  Chesapeake,  in  order 
to  ascertain  the  extent  of  injury  received  on  her  passage  from 
Guasco  to  Baltimore,  and  reshipped.  by  order  of  Captain  T.  A. 
Lane,  of  said  ship,  for  account  and  risk  of  whom  it  may  con- 
cern, and  consigned  to  John  Donnell,  Esq.  merchant,  Balti- 
more,"  amounting  to  8315  2J,  including  commission  on  300  bars 
of  copper,  amounting  to  $1 79  04J.  Dated  and  signed  as  above. 

a  Disbursements  of  the  American  ship  Chesapeake,  Captain 
John  C.  Pawson,  at  the  port  of  Coquimbo,  by  Edwards  fy  Stewart, 


OF  MARYLAND.  33 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs 1829. 

amounting,  including  commission,  to  82,508  03f ,  dated  the  19th 
of  January,  and  signed  by  Edwards  <$•  Stewart. 

An  invoice  of  goods,  &c.  shipped  by  Edwards  fy  Stewart,  by 
order  of  Captain  Lane,  on  board  the  Esther,  whereof  F.  G. 
Low  is  master,  bound  to  Baltimore,  viz :  2876  bars  of  copper, 
weighing  5505  quintals,  98  pounds  Spanish  weight,  being  part 
of  the  original  cargo  of  the  ship  Chesapeake,  and  shipped  for 
account  of  whom  it  may  concern,  unto  John  Donnell,  he  paying 
freight,  &c.  Dated  Coquimbo,  3d  of  July,  1821. 

Also,  the  check  of  the  defendant  on  the  Office  of  Discount 
and  Deposit,  in  favour  of  the  owners  of  the  ship  Esther,  for 
gl  4,453  20. 

To  dispense  with  a  commission  to  take  testimony  the  plaintiffs 
admitted,  1  st.  The  transaction  of  cordage  from  London  to  Co- 
quimbo, according  to  the  account  of  sales  of  the  cordage.  2. 
That  the  cordage  was  for  the  joint  account  of  Pawson  and  God- 
dard.  3.  That  gold  and  silver  bullion  are  prohibited  articles 
of  exportation  at  Chili.  4.  The  parties  agreed  that  all  letters 
and  accounts  of  sales  and  accounts  current,  from  Edwards  fy 
Stewart,  may  be  read  on  both  sides. 

The  defendant  also  offered  in  evidence,  that  the  usual  freight 
from  London  to  Coquimbo,  was  fifty  dollars  per  ton.  The 
plaintiffs  then  offered  in  evidence,  that  it  was  the  usage  among 
ship  owners  and  masters,  not  to  charge  freight  where  the 
ship  was  in  ballast,  for  any  articles  shipped  by  the  captain  on 
his  own  account.  The  defendant  offered  in  evidence,  that 
there  was  no  usage  as  above  stated,  and  that  the  captain  was 
liable  for  freight  to  his  owner  like  any  other  person,  if  the 
owner  chose  to  exact  it. 

1st.  EXCEPTION.  The  defendant  then  prayed  the  opinion  of 
the  court  to  the  jury,  that  upon  the  evidence  above  stated,  the 
defendant  is  entitled  to  set  off,  in  this  case,  the  freight  on  the 
goods  and  merchandize,  shipped  by  Captain  Pawson,  on  his  own 
account,  from  London  to  Coquimbo;  which  opinion  the  court 
[ARCHER,  Ch.  J.*and  WARD,  A.  J.|  refused  to  give,  but  were 
of  opinion,  and  so  directed  the  jury,  that  the  defendant  is  entitled 
to  set  off  the  said  freight,  unless  the  plaintiffs  can  shew  by  testi- 
VOL.I— 5. 


34  CASES  IN   THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson's  Adm'rs — 1829. 

mony,  that  there  was  a  known  and  established  usage  that  the 
captain,  under  the  above  circumstances,  was  not  chargeable 
with  freight,  and  that  the  said  usage  was  so  well  known  and 
established,  that  it  must  be  supposed  to  have  entered  into  the 
contemplation  of  the  parties  at  the  time  they  originally  made  the 
contract  first  herein  before  stated.  The  defendant  excepted. 

2.  EXCEPTION.  The  defendant  then  prayed  the  court  to  in- 
struct the  jury,  that  according  to  the  contract  of  the  parties,  as 
set  forth  in  the  correspondence  exhibited  in  the  first  bill  of  ex- 
ceptions, the  voyage  as  originally  projected,  to  wit,  from  Balti- 
more to  London,  thence  to  Coquimbo,  thence  to  Canton,  and 
thence  home  to  Baltimore,  having  been  altered  by  the  direction 
of  the  defendant,  and  the  consent  of  Captain  Pawson,  so  as  to 
strike  out  the  trip  from  Coquimbo  to  Canton,  and  give  the  ship 
a  destination  direct  from  Coquimbo  home  to  Baltimore,  the  pri- 
vilege originally  stipulated  for  Captain  Pawson  to  bring  home 
twenty-five  tons  from  Canton,  clear  of  freight,  was  voluntarily 
relinquished  by  him,  and  exchanged  for  the  privilege  of  bring- 
ing home  his  funds  in  copper  from  Coquimbo,  and  that,  conse- 
quently, the  plaintiffs  are  not  entitled  to  any  compensation  for 
the  alleged  loss  of  the  privilege  of  bringing  home  the  twenty- 
five  tons  from  Canton.  Which  instruction  the  court  refused  to 
give,  but  gave  the  following  opinion  and  direction  to  the  jury : 

The  court  are  of  opinion  and  so  direct  the  jury,  that  the 
plaintiffs  are  entitled  to  recover  an  equivalent  for  the  loss  they 
may  prove  their  intestate  to  have  sustained,  by  being  deprived 
of  his  privilege  from  Canton  or  Batavia  to  the  United  States,  in 
consequence  of  the  change  made  by  the  defendant  in  the  desti- 
nation of  the  vessel,  unless  the  jury  should  be  satisfied  from  the 
evidence,  that  the  plaintiffs'  intestate  did,  with  a  knowledge  of 
his  legal  rights,  waive  the  benefit  of  the  privilege  accorded  to 
him  at  the  commencement  of  the  voyage,  and  did  accept  in  lieu 
thereof  a  privilege  from  Coquimbo  to  Baltimore.  The  court 
further  instruct  the  jury,  that  if  they  believe  from  the  evi- 
dence that  the  plaintiffs'  intestate  shipped  goods  from  London 
to  Chili,  on  board  the  defendant's  vessel,  that  the  defendant  is 
entitled  to  a  credit  for  the  freight  thereof,  unless  the  jury  shall 


OF  MARYLAND.  35 

Pawson's  Adm'ra  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

believe  that  there  existed  a  definite  general  and  well  known 
usage,  at  the  time  of  the  commencement  of  the  voyage,  that 
freight,  under  the  circumstance  of  this  case,  should  not  be 
charged  by  parties  standing  in  the  relation  of  the  defendant  to 
the  plaintiffs'  intestate.  And  further,  unless  the  jury  believe 
there  was  such  a  waiver  and  acceptance  as  is  stated  in  the  first 
part  of  this  direction,  on  the  part  of  the  plaintiffs'  intestate,  that 
then  the  defendant  is  entitled  to  a  reasonable  freight  for  such 
articles  as  were  shipped  on  account  of,  or  which  belonged  to 
plaintiffs'  intestate,  from  Chili  to  the  United  States.  The  de- 
fendant excepted. 

3.  EXCEPTION.     The  defendant  further  prayed  the  court  to 
instruct  the  jury,  that  if  they  believe  that  the  contract  made 
between  the  plaintiffs'  intestate  and  defendant,  was  an  entire 
contract  for  82000,  for  the  faithful  performance  of  the  duties 
of  supercargo  by  Pawson,  and  a  strict  conformity  to  the  in- 
structions he  should  receive,  that  then  the  violation  of  his  duty 
as  supercargo  by  a  departure  from  his  instructions  in  taking  on 
freight,  prohibited  articles,  thereby  putting  the  ship  and  the 
owner's  interest  therein,  in  jeopardy,  was  such  an  infringement 
of  the  entire  contract,  as  took  away  from  the  plaintiff  any  right 
to  demand  the  fulfilment  of  the  same  on  the  part  of  the  defen- 
dant   Which  opinion  and  direction  the  court  refused  to  give. 
The  defendant  excepted. 

4.  EXCEPTION.    The  defendant  then  prayed  the  court  fur- 
ther to  instruct  the  jury,  that  according  to  the  contract  of  the 
parties  as  set  forth  in  the  correspondence  exhibited  in  the  first 
bill  of  exceptions,  the  compensation  of  $2000  stipulated  to  be 
paid  to  Captain  Pawson,  as  supercargo,  had  relation  to  the  ori- 
ginal voyage  from  Baltimore  to  London,  thence  to  Coquimbo, 
thence  to  Canton,  and  thence  home  to  Baltimore ;  and  that  the 
voyage  having  been  shortened  by  striking  out  the  trip  to  Canton, 
and  making  the  destination  of  the  vessel  direct  from  Coquimbo 
to  Baltimore,  and  Captain  Pawson  having,  moreover,  died  at 
Coquimbo,  in  the  course  of  the  voyage,  before  he  had  comple- 
ted the  investment  of  the  defendant's  funds,  that  compensation 
is  subject  to  abatement  in  the  discretion  of  the  jury  on  two 


36  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  rs.  Pawson's  Adm'rs. — 1829. 

grounds — First,  for  the  alteration  of  the  voyage,  if  the  jury 
shall  be  of  the  opinion  that  the  labour  and  responsibility  of 
Captain  Paieson  were  thereby  lightened — Second,  for  that  por- 
tion of  the  contemplated  services  of  Captain  Pawson,  which 
were  lost  to  the  defendant  by  his  death  at  Coquimbo.  Which 
instruction  tlie  court  refused  to  give,  but  were  of  opinion,  and 
so  directed  the  jury,  that  if  they  believed  the  evidence  in  the 
cause,  the  plaintiffs  were  entitled  to  recover  of  defendant  a 
rateable  proportion  of  the  sum  of  $2060,  which  proportion  the 
jury  should  ascertain  by  computing  the  time  from  the  com- 
mencement of  the  voyage  to  Captain  Pawson's  death,  and  from 
his  death  until  the  duties  of  supercargo  were  completed  by  the 
signature  of  the  bill  of  lading,  for  the  homeward  voyage,  and 
that  the  jury  may  allow  him  as  supercargo  such  portion  of  the 
said  sum  as  they  may  deem  him  entitled  to,  for  acting  in  said 
capacity,  up  to  the  time  of  his  death,  at  Coquimbo,  according  to 
the  rule  above  stated.  The  defendant  excepted. 

5.  EXCEPTION.  The  defendant  then  prayed  the  court  to  in- 
struct the  jury,  that,  according  to  the  contract  of  the  parties  as 
set  forth  in  the  correspondence  exhibited  in  the  first  bill  of  ex- 
ceptions, the  compensation  of  $2000,  stipulated  to  be  paid  to- 
Captain  Pawson,  as  supercargo,  on  the  voyage  originally  pro- 
jected, to  wit,  from  Baltimore  to  London,  thence  to  Coquimbo, 
thence  to  Canton,  thence  home  to  Baltimore,  was  one  entire 
compensation  to  be  paid  for  one  entire  service,  on  the  return  of 
Captain  Paicson  to  Baltimore,  and  not  subject  to  be  apportioned 
by  a  part  performance  of  the  service,  unless  Captain  Paicson 
had  been  prevented  by  the  defendant  from  performing  the  resi- 
due thereof — that  the  voyage  having  been  altered  by  the  con- 
sent of  the  parties  (as  appears  by  said  correspondence)  by  stri- 
king out  that  part  of  it  which  related  to  the  trip  to  Canton,  and 
directing  the  destination  of  the  ship  from  Coquimbo  to  Balti- 
more, without  saying  any  thing  of  the  aforesaid  compensation 
to  Captain  Pawson,  as  supercargo,  that  stipulation  attached 
upon  the  new  voyage,  precisely  in  the  same  manner  in  which  it 
had  been  attached  to  the  original  voyage,  that  is  to  say,  that  it 
was  one  entire  compensation  for  one  entire  service,  not  subject 


OF  MARYLAND.  37 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

to  be  apportioned  by  a  part  performance  of  the  service,  and 
that  consequently,  the  death  of  Captain  Pawson  at  Coquimbo,  in 
the  progress  of  the  voyage,  and  before  the  complete  perform- 
ance of  the  service,  put  an  end  to  all  claim  on  the  part  of  the 
plaintiffs,  to  any  part  of  the  $2000.  Which  opinion  and  direc- 
tion the  court  refused  to  give.  The  defendant  excepted. 

6.  EXCEPTION.     The  defendant  then  prayed  the  court  to  in- 
struct the  jury,  that  in  estimating  the  value  of  the  privilege  of 
twenty-five  tons  from  Canton  to  Baltimore,  which,  according  to 
the  opinion  expressed  in  the  first  bill  of  exceptions,  the  plain- 
tiffs are  entitled  to  claim  in  this  action  ;  if  it  was  not  relinquish- 
ed and  exchanged  by  Captain  Pawson,  by  the  privilege  from 
Coquimbo,  the  jury  should  consider  that  privilege  as  having 
been  subject  to  the  contingency  of  the  safe  arrival  of  the  ship 
at  Canton,  and  the  continuance  of  Captain  Pawson's  life,  and 
that  either  the  destruction  of  the  ship  or  the  death  of  Captain 
Pawson  at  Coquimbo,  in  the  course  of  that  voyage,  would  have 
put  an  end  to  all  claim  by  his  representatives  on  account  of  this 
privilege.     Which  instruction  the  court  refused  to  give,  and  in- 
structed the  jury  that  these  contingencies  ought  not  to  enter 
into  their  calculation.     The  defendant  excepted. 

7.  EXCEPTION.     And  the  defendant  further  prayed  the  court 
to  direct  the  jury,  that  the  plaintiffs  are  not  entitled  to  recover 
the  said  sum  of  $2000,  nor  any  part  thereof,  under  the  evi- 
dence given  in  this  cause.     Which  opinion  and  direction  the 
court  refused  to  give.     The  defendant  excepted. 

8.  EXCEPTION.     The  defendant  also  prayed  the  court  to  di- 
rect the  jury,  that  if  the  jury  believe  that  Captain  Pawson  had 
actually  purchased  before  his  death,  a  sufficient  quantity  of  cop- 
per, which,  with  the  other  property,  purchased  by  Captain  Paw- 
son  for  account  of  the  defendant,  and  afterwards  put  on  board, 
was  sufficient  to  exhaust  the  funds  of  the  defendant  confided  by 
him  to  Pawson,  that  then  the  plaintiffs  are  not  entitled  to  reco- 
ver the  compensation  of  f  2000,  mentioned  in  the  letters  of  in- 
struction of  the  defendant,  unless  the  defendant  received  on 
board  his  ship  a  sufficient  quantity  of  copper  to  exhaust  his 


38  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  r».  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 182?. 

said  funds.     Which  opinion  and  instruction  the  court  refused 
to  give.     The  defendant  excepted. 

9.  EXCEPTION.     The  defendant  further  prayed  the  court  to 
instruct  the  jury,  that  there  is  no  evidence  in  the  cause  from 
which  they  can  infer  that  Captain  Pawson  consented    to  the 
change  of  the  original  voyage  from  Coquimbo  to  Canton,  and 
from  Canton  to  the   United  States,  and  waived  his  privilege 
from  Canton  to  the  United  States,  through  ignorance   of  his 
legal  rights,  the  presumption  of  law  being  that,  if  he  had  full 
knowledge  of  the  facts,  he  had  full  knowledge  of  his  legal 
rights  growing  out  of  those  facts.     Which  opinion  and  instruc- 
tion the  court  refused  to  give.     The  defendant  excepted. 

10.  EXCEPTION.     In  addition  to  the  evidence  stated  in  the 
preceding  bills  of  exceptions,  the  plaintiffs  offered  in  evidence, 
that  the  gold  which  was  seized  at  Guasco,  was  purchased  after 
the  death  of  Pawson,  and  after  all  the  copper  which  the  said 
ship  would  bear,  was  actually  purchased  and  loaded  on  board 
the  said  ship,  and  that  the  same  was  purchased  with  the  very 
doubloons  brought  by  Pawson  for,  and  on  account  of  Donnell, 
from  England,  and  which  remained  in  possession  of  Edwards  & 
Stewart,  at  the  time  of  Pawson's  death  ;  and  that  the  said  gold 
was  actually  purchased  by,  and  under  the  advice  of  Thomas  A. 
Lane,  acting  as  the  captain — which  said  Lane  was  the  mate 
of  the  ship,  and  succeeded  to  the  command  on  the  death  of 
Pawson — that  in  the  said  proceeding  Lane  had  no  other  author- 
ity from  Donnell  to  act  as  his  agent  than  what  was  derived 
from  his  succeeding  Pawson  as  captain  of  the  ship,  and  was 
acting  under  the  instructions  of  Donnell  to  Pawson  beforemen- 
tioned.     The  plaintiffs  then  prayed  the  opinion  of  the  court  to  the 
jury,  that  if  the  jury  find  from  the  evidence,  that  the  gold  which 
was  seized  and  lost  at  Guasco,  after  the  death  of  Pawson,  was 
purchased  by  Edwards  &f  Stewart  after  Pawson's  death,  with 
the  separate  funds  of  Donnell,  and  on  his  account,  and  shipped 
accordingly,  without  any  power  or  authority  from  Pawson  to 
do  so,  that  then  the  defendant  is  not  entitled  to  set  off  the  value 
or  cost  of  the  gold  against  the  claim  of  the  plaintiffs  in  this  suit. 


OF  MARYLAND.  39 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

Which  opinion  the  court  refused  to  give.     The  plaintiffs  ex- 
cepted. 

11.  EXCEPTION.     The  defendant  further  prayed  the  court  to 
instruct  the  jury,  that,  according  to  the  orders  of  the  defen- 
dant, assented  to  by  Captain  Pawson,  as  set  forth  in  the  corres- 
pondence exhibited  in  the  first  bill  of  exceptions,  it  was  the  duty 
of  the  said  Pawson,  as  the  supercargo  and  agent  of  the  defendant, 
to  invest  all  of  the  defendant's  funds  in  copper  at  Chili,  if  cop- 
per could  be  had,  and  to  bring  the  same  home,  and  deliver  it  to 
the  defendant  in  Baltimore;  and  if,  in  these  circumstances,  Paw- 
son  holding  both  the  defendant's  funds,  and  his  own,  after  hav- 
ing purchased  and  put  on  board  the  ship   Chesapeake,  copper 
equal  to  the  amount  of  the  defendant's  funds,  thought  proper, 
for  any  reason,  to  make  an  investment  in  gold  or  silver,  and 
did,  during  his  life,  make  such  investment ;  or,  if  his  agents, 
Edwards  fy  Stewart,  succeeding  to  the  possession  of  those  joint 
funds,  did,  after  copper  had  been  purchased  and  put  on  board 
equal  to  the  amount  of  defendant's  funds,  make  any  such  invest- 
ment in  gold  or  silver,  and  if  such  gold  and  silver  was  after- 
wards seized  by  the  government  of  Chili,  and  confiscated,  as 
having  been  attempted  to  be  exported,  contrary  to  the  laws  of 
the  country,  that  the  loss  must  be  borne  by  Pawson  and  his  re- 
presentatives, and  cannot  be  thrown  on  the  defendant.    Which 
opinion  and  instruction  the  court  gave.     The  plaintiffs  excepted. 

12.  EXCEPTION.     The  defendant  further  prayed  the  court  to 
instruct  the  jury,  that  if,  upon  the  whole  evidence  in  the  case, 
they  shall  be  of  opinion,  that  copper  was  brought  home,  equal 
to  the  whole  amount  of  the  funds  of  the  defendant,  and  equal  to 
Person's  privilege  in  copper,  (as  he  was  willing  to  accept  it) 
that  the  plaintiffs  are  not  entitled  to  recover  of  the  defendant, 
the  amount  of  any  gold  or  silver  which  Pawson  or  his  agents,  Ed- 
wards fy  Stewart ,  may  have  put  on  board  the  Chesapeake,  of  their 
own  accord,  and  without  the  knowledge,  consent,  or  orders  of 
the  defendant,  and  which  may  have  been  afterwards  seized  by 
the  government  of  Chili,  and  confiscated,  as  having  been  at- 
tempted to  be  exported,  contrary  to  the  laws  of  the  land — and 
that  the  defendant's  having  received  from  Captain  Lane,  the 


40  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donncll.     Dnnnell  vs.  Pawson's  Adm'rs. — 1829. 

successor  of  Captain  Pawson,  in  tho  command  of  the  Chesa- 
peake, the  letters  and  invoices  sent  to  him  by  Edwards  fy  Stewart, 
is  not,  under  the  circumstances  of  the  case,  such  a  ratification  of 
the  act  of  purchasing  and  putting  on  board  such  gold  and  silver, 
as  to  throw  the  loss  of  it  upon  the  defendant,  and  to  authorize 
the  plaintiffs  to  recover  it  from  him  in  this  action.  Which 
opinion  and  instruction  the  court  gave.  The  plaintiffs  excepted. 
Verdict  and  Judgment  for  the  Plaintiffs  for  the  sum  of 
$5510  43.  From  which  judgment  both  parties,  the  plaintiff's 
and  defendant,  appealed  to  this  Court. 

The  cause  on  both  appeals  was  argued  before  BUCHANAN, 
Ch.  J.,  and  STEPHEN  and  DORSEY,  J. 

Williams,  (District  Attorney  of  U.  S.)  for  Pawson's  adminis- 
trators, the  appellants  in  the  first  appeal,  contended  in  argument 
on  the  three  bills  of  exceptions  taken  on  the  part  of  the  plain- 
tiffs below,  viz:  the  10th,  1 1th,  and  12th  bills  of  exceptions. 

1.  That  the  gold,  which  was  seized  at  Guasco,  and  there 
condemned,  having  been  purchased  by  Edwards  fy  Stewart,  after 
the  death  of  Pawson,  without  his  authority,  but  with  the  ad- 
vice of  his  successor,  Captain  Lane,  and  with  the  money  of  the 
defendant,  ought  not  to  be  charged  to  Pawson,  nor  the  cost 
thereof  deducted  out  of  his  funds. 

2.  That  Pawson  ought  not  to  bear  the  loss  of  the  gold,  pur- 
chased, seized  and  condemned  as  aforesaid.     1st.  Because  he 
was  not  bound  to  invest  all  the  defendant's  money  in  copper,  to 
the  exclusion  of  his  own  funds.     2d.  Because  he  did  not  purchase 
any  gold  in  his  lifetime; — and,  3d.  Because  Edwards  $f  Stewart 
were  not  his  agents,  after  his  death,  so  far  as  regarded  the  de- 
fendant's funds,  but  were  in  that  respect,  the  defendant's  agents. 

3.  That  Edwards  <$•  Stewart,  being,  after  Pawson's  death, 
only  his  agents,  or  the  agents  of  his  representatives,  for  the 
funds  of  Pawson  in  their  hands,  and  being  the  agents  of  the  de- 
fendant, for  the  funds-of  his  in  their  hands,  and  Pawson  having 
a  co-equal  right  with  the  defendant  to  have  his  funds  invested 
in  copper;  and  the  said  agents  having  actually  invested  a  part  of 
the  defendant's  funds  in  gold,  and  none  of  Pawson's  in  that  arti- 


OF  MARYLAND.  41 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  us.  Pawson's  Adm'rs. — 1829. 

cle,  the  loss  of  the  gold  is  the  defendant's,  and  not  Pawson's  re- 
presentatives. 

On  the  second  point  he  referred  to  2  Liv.  on  Agency,  298.  1 
Liv.  on  Agency,  261  to  278.  Taylor  vs.  Plwnmer,  3  Maule 
and  Selw.  562-  2  Liv.  on  Agency,  281. 

C.  C.  Harper  for  Donnell,  the  appellee  in  the  first,  and  the 
appellant  in  the  second  appeal,  stated  that  for  the  appellant  in 
the  second  appeal,  it  would  be  contended, 

1 .  That  no  usage  can,  in  such  a  case,  be  permitted  to  be  en- 
grafted upon,  or  to  control  a  written  and  express  contract  so 
plainly  and  unambiguously  set  out.    This  point  arises  under  the 
first,  and  a  part  of  the  second  bills  of  exceptions. 

2.  That  the  privilege  from  Canton  depended  entirely  upon 
the  voyage  to  Canton,  which  was  within  the  control  of  the  de- 
fendant below,  as  owner  of  the  ship ;  that  this  privilege  was  ex- 
pressly waived  by  Pawson  for  an  equivalent,  with  knowledge 
of  his  legal  rights ;  and  that,  with  knowledge  of  the  facts,  ignor- 
ance of  his  legal  rights  was  no  excuse.     This  point  embraces  a 
part  of  the  second  bill  of  exceptions. 

3.  That  Pawson's  acceptance  or  non-acceptance  of  the  new 
voyage,  and  substituted  privilege,  was  a  question  of  law,  and 
that  the  court  ought  to   have  construed  the  writings    under 
which  the  question  of  acceptance  arose,  and  not  have  left  it  to 
the  jury.     This  point  embraces  also  a  part  of  the  second  bill  of 
exceptions. 

4.  That  the  record  affords  no  evidence  of  any  ignorance  of 
his  legal  rights,  and  that  the  court  ought  so  to  have  directed  the 
jury,  as  prayed  in  the  ninth  bill  of  exceptions,  and  erred  in  re- 
fusing such  direction.     This  point  embraces  the  ninth  bill  of  ex- 
ceptions. 

5.  That  the  $2000  agreed  to  be  paid  as  compensation  to  Paw- 
son,  depended  on  the  performance  of  the  entire  voyage,  and  on 
his  return  to  Baltimore,  which  were  conditions  precedent.     This 
point  embraces  the  third,  fifth,  and  seventh  bills  of  exceptions. 

VOL.  I.— 6. 


42  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.    Donncll  vs.  Pawson's  Adm'rs — 1829. 

6.  That  if  the  whole  $2000  cannot  be  recovered,  there  can- 
not be  an  apportionment,  and  no  part  of  it  can  be  recovered. 
This  point  embraces  the  same  bills  of  exceptions  in  part. 

7.  That  Patrson,  by  departing  from  the  instructions  of  the 
defendant,  (the  owner  of  the  ship  he  commanded,  and  in  whose 
employ  he  was)  and  by  his  other  misconduct,  as  detailed  in  the 
record,  lost  his  right  to  demand  the  compensation  of  $2000,  or 
any  part  thereof.     This  point  embraces  the  same  bills  of  excep- 
tions in  par£ 

8.  That  the  court  below  having  pronounced  an  opinion  that 
there  could  be  an  apportionment  of  the  compensation  of  $2000, 
they  erred  in  directing  the  jury  not  to  allow  any  abatement  by 
reason  of  the  shortening  of  the  voyage,  or  the  death  of  Pawsonr 
and  they  also  erred  in  fixing  the  "  date  of  the  signature  of  the 
bill  of  lading  for  the  homeward  voyage,"  as  the  period  at  which 
his  duties  as  supercargo,  were  completed.    This  point  embra- 
ces the  fourth  bill  of  exceptions. 

9.  That  if  the  privilege  from  Canton  did  not  depend  entire- 
ly on  the  voyage  to  Canton  taking  place,  and  the  defendant  was 
liable  to  Paicson  for  the  loss  of  the  original  voyage  and  privilege 
surrendered  by  him  "  under  a  mistake  of  his  legal  rights,"  then 
the  jury,  in  estimating  the  value  of  the  privilege  so  surrender- 
ed, ought  to  have  taken  into  their  calculation  the  possible  death 
of  Pawson,  or  the  possible  loss  of  the  ship  before  she  reached 
Canton,  and  the  court  below  erred  in  refusing  such  direction  to 
the  jury  as  prayed  by  the  defendant  in  the  sixth  bill  of  excep- 
tions. 

10.  That  if  Paicson  had  actually  purchased,  before  his  death, 
an  amount  of  copper,  which,  with  the  other  property  purchased 
for  the  defendant,  and  put  on  board,  was  sufficient  to  exhaust 
the  funds  of  the  defendant,  confided  to  Paicson  by  him,  that 
then  the  plaintiffs  below  were  not  entitled  to  recover  the  $2000, 
unless  the  defendant  received  on  board  his  ship,  a  sufficient 
quantity  of  copper  to  exhaust  his  funds,  and  the  court  below 
erred  in  not  so  directing  the  jury,  as  prayed  for  by  the  defen- 
dant below,  as  stated  in  the  eighth  bill  of  exceptions.     Undei 
this  point,  the  defendant  (now  appellant)  contends,  that  Pawso* 


OF  MARYLAND.  43 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

was  special  agent  for  the  purchase  of  copper;  that  if  he  was 
general  agent,  he  violated  his  duty  by  not  using  a  sound  discre- 
tion ;  that  Edwards  fy  Stewart  were  his  agents ;  and  that  the 
gold  and  silver  belonged  to  him. 

11.  The  appellant  will  also  contend,  under  the  eighth  bill  of 
exceptions.  1st.  That  independent  of  the  hypothetical  assump- 
tion in  the  prayer  upon  which  this  exception  is  founded,  the  fact 
that  a  surplus  of  copper  (over  and  above  all  the  defendant's 
funds,  and  over  and  above  the  147  quintals  delivered  to  Paw- 
son)  remained  in  the  ship,  is  proved  by  the  evidence  in  the  re- 
cord. 2d.  That  the  ship  was  sent,  and  Pawson  employed  for  a 
special  purpose  ;  that  she  was  not  a  general  ship,  and  therefore 
Pawson  could  not  take  in  goods  for  other  persons,  or  interfere 
with  the  owner's  arrangements,  and  thereby  throw  a  loss  upon 
the  owner.  3d.  That  if  he  could  so  use  the  ship  as  to  bind  his 
owner  to  third  persons,  the  owner  might  set  off  the  compensa- 
tion of  $2000  against  such  loss. 

On  the  second  point  he  cited  1  Liv.  on  Agency ,  150,  151. 
Doct.  and  Stud.  ch.  26,  page,  79;  ch.  46,  page,  253.  Lowry  vs. 
Bourdieu,  Dougl.  471,  (455.)  Lammott  vs.  Bowly,  6  Harr.  8f 
Johns.  520. 

On  the  fifth  point.  Portage  vs.  Cole,  1  Saund.  320  (note  4.) 
Furnival  vs.  Crew,  9  Mod.  455,  459. 

On  the  sixth  point,  Cutter  vs.  Powell,  6  T.  R.  320.  Cook  vs. 
Jennings,  7  T.R.  381. 

On  the  tenth  point,  East  India-  Company  vs.  Hensley,  I  Esp. 
Rep.  111.  Fenn  vs.  Harrison,  3  T.  R.  757.  G-tbson  vs.  Colt,  7 
Johns.  Rep.  393.  Prince  vs.  Clark,  8  Serg.  fy  Low,  54.  Esp. 
Etid.  64.  1  Com.  on  Cont.  237.  2  Liv.  on  Agency,  298. 

R.  B.  Magruder  on  the  same  side.  On  the  first  point  he 
cited  Path,  on  Mar.  Cont.  13,  14,  32,  135.  Mbott  on  Ship- 
ping, 1 37,  (1 1 9)  557.  3  Stark.  Evid.  998,  1036. 

On  the  third  point,  Macbeath  vs.  Haldimand,  1  T.  72.180, 
182  Ferris  vs.  Walsh,  5  Harr.  fy  Johns.  308. 

On  the  fourth  point,  Key's  Exr.  vs.  Parnham,  6  Harr.  fy 
Johns.  418.  Davis  vs.  Davis,  et  al  7,  Harr.  fy  Johns.  36. 


44  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donnell.     Donncll  rs.  Pawson's  Adm'rs. — 1829. 

On  the  seventh  point,  Abbott  \  83.  Montgomery  vs.  IWutrton,  2 
Peters'  Mm.  Rep.  401.  1  Com.  on  Cont.  221,  222,  225,  230, 
235.  Robinson  vs.  Ilimlman,  3  Esp.  Rep.  235. 

On  the  eighth  point,  Abbott  482. 

On  the  ninth  point,  Pothicr  1 35. 

On  the  ekventh  point,  Jlbbott  119,  1  Com.  on  Cont.  221,  222. 
Campbell  vs.  Thompson,  2  Serg.  fy  Low,  481,  (1  Stark.  Rep. 
490.)  Locte  »s.  Smi*  A,  10  /o/ins.  #ep.  250.  The  act  of  1785, 
ch.  46  and  47.  Clarke  vs.  Magruder,  2  Hair,  fy  Johns.  77. 
iMcFadon  vs.  Baltimore  Insurance  Company,  4  Harr.  fy  Johns. 
45. 

Williams,  (District  Attorney  of  the  U.  S.)  in  reply  to  the  ar- 
gument of  the  counsel  of  Donnell,  on  the  bills  of  exceptions  ta- 
ken by  him,  and  which  constitute  the  subject  of  the  second  ap- 
peal, on  ibe  first  bill  of  exceptions,  he  cited  3  Stark.  Evid.  1038. 
2  Stark.  Evid.  453,  454,  447,  452.  Birch  vs.  Depeyster,  2  Serg. 
fy  Low.  359.  (1  Stark.  Rep.  210.)  Senior  vs.  Armitage,  3  Serg. 
Sf  Low,  71.  Cutter  vs.  Powell,  6  T.  R.  320.  Zagary  vs.  Fur- 
nell,  2  Camb.  240.  Renner  vs.  Bank  of  Columbia,  9  Wheat. 
582.  Jackson  vs.  The  Union  Bank  of  Maryland,  6  Harr.  fy 
Johnson,  146.  Bank  of  Columbia  vs.  Magnifier's  Jldmx.  Ibid. 
172,  180.  Phill.  on  Ins.  18.  Park,  589,  630.  Marsh.  226, 
259,  270,  365,  375,  707.  Troll  vs.  Wood,  1.  Gall.  Rep.  444. 
Winter  vs.  Brockwell,  8  East.  308. 

On  the  eighth  bill  of  exceptions,  Peafce's  Evid.  (JVorns's  Ed.} 
416.  Winchester  vs.  Hackky,  2  Crunch  342.  2  Stark.  Evid,  642, 
643.  Farmsworthvs.  Garrard,  I  Campb.  38. 

On  the  third  bill  of  exceptions,  1  vol.  Laws  of  U.  S.  272. 

On  the  fourth  bill  of  exceptions,  Etting  vs.  Bank  of  United 
States,  11  Wheat.  75.  1  Liv.  en  Agency,  69  to  180.  2  Liv.  on 
Agency  214,  215.  Kendrickvs.  Delafald,  2  Cain's  Rep.  67, 72. 
The  United  Insurance  Company  vs.  Scott  and  Seaman,  1  Johns. 
Rep.  Ill,  115.  Jlbbott  270.  Thorne  vs.  White, I  Peters.  Mm. 
Rep.  176  (note.)  Rice  vs.  The  Polly  and  Kitty,  2  Peters  Mm.  Rep. 
420. 


OF  MARYLAND.  45 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

On  the  fifth  bill  of  exceptions,  Cutter  vs.  Powell,  6  T.  R.  320. 
Abbott,  427.  Hart  vs.  The  ship  Littlejohn,  1  Peters  Adm.  Rep. 
115,  118, 119,  121.  Pothier  116,  117,  118.  Pordage  vs.  Cole, 

1  Saund.  320  (note  4.)     Campbell  vs.  Jones.,  6  T.  R.  570.     2 
Stark.  Evid.  642.     1  Pow.  on  Cont.  267. 

On  the  second  bill  of  exceptions,  Laidlaw  vs.  Organ,  2  Wheat. 
178,  183,  195.  Etting  vs.  Bank  of  United  States,  1.1  Wheat. 
75.  1  Liv.  on  Jig.  71.  M'lntyre  vs.  Bowne,  1  Johns.  Rep. 
238,  259.  Lammott  vs.  Bowly,  6  Harr.  #  Jo/ins.  522,  524. 

On  the  ninth  bill  of  exceptions,  Lammott  vs.  Bowly,  6  Harr. 
fy  Johns.  522,  524,  1  Stark.  Evid.  399.  Etting  vs.  Bank  of 
United  States,  11  Wheat.  76. 

On  the  sixth  bill  of  exceptions,  Etting  vs.  Bank  of  United 
States,  1 1  Wheat.  75,  Abbott,  489,  434.  Val.  Com.  tit.  4  art.  3, 

2  Bro.  C.  8f  A.  L.  533.     Pothier  120,  126.    Nap.  Code,  art. 
250.     Morrison  vs.  Galloway,  2  Harr.  fy  Johns.  461  to  468. 
Sigard  vs.  Roberts,  3  Esp.  .Rep.  71.     Knight  vs.  Crockford,  1 
Esp.  Rep.  192,  193.     Campbell  vs.  Jones,  6  T.  12.  570.     Hoyt 
vs.  Wildfire,  3  Johns.  Rep.  518.  Sullivan  vs.  Morgan,  11  Johns. 
Rep.  66. 

The  causes  were  then  postponed,  and  by  agreement,  written 
arguments  of  the  counsel  were  to  be  submitted  to  the  court ; 
and  the  following  were  accordingly  submitted. 

Taney,  (Attorney  General)  for  Pawscni's  administrators.  In 
the  case  now  under  discussion,  (the  one  in  which  Donnell  is 
appellant,)  it  will  be  found  that  there  are  three  subjects  in  con- 
troversy between  the  parties. 

1.  Is  Donnell  entitled   to   charge  freight  on  the  goods  of 
Pawson,  shipped  "  on  his  own  account"  from  London  to  Co- 
quimbo  ? 

2.  Are  Pawson's  administrators  entitled  to  recover  any  part 
of  the  f  2000,  mentioned  in  DonnelVs  letter  of  November  1 8, 
1819?     And  if  they  are  entitled  to  recover  a  part,  what  pro- 
portion are  they  entitled  to  recover,  and  by  what  rule  is  that 
proportion  to  be  ascertained  ? 


46  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Admr's.— 1829. 

3.  Are  the  administrators  of  Pawson  entitled  to  recover  com- 
pensation for  the  privilege  of  twenty-live  tons,  from  Canton  to 
Baltimore,  stipulated  in  DonneWs  letter  of  November  18, 1819, 
and  of  which  Pawson  was  deprived  by  the  act  of  Donnell,  in 
changing  the  voyage  originally  contemplated  ? 

The  defendant  below  has  brought  up  nine  exceptions,  and 
each  of  them  will  be  found  to  relate  to  one  of  the  items  above- 
mentioned,  and  to  involve  some  of  the  questions  [there  stated. 
Instead,  therefore,  of  taking  up  the  exceptions,  in  the  order  in 
which  they  are  set  forth  in  the  record,  they  will  be  classed  and 
considered  in  this  discussion,  according  to  the  above  arrange- 
ment. 

First  point. — Is  Donnell  entitled  to  charge  freight  on  the 
goods  and  merchandize  shipped  by  Pawson,  on  his  own 
account,  from  London  to  Coquimbo. 

This  question  is  presented  by  the  prayer  of  the  defendant, 
and  the  opinion  of  the  court  in  the  1st  exception.  The  same 
principle  is  again  decided  in  the  2d  exception. 

The  whole  course  and  objects  of  the  voyage  contemplated, 
when  the  vessel  sailed  from  Baltimore,  are  detailed  in  the  let- 
ter of  Donnell,  of  November  18, 181 9,  and  the  alterations  after- 
ward smade,  will  be  found  in  his  letter  of  December  26,  1819. 

According  to  both  letters,  the  ship  was  to  proceed  in  ballast 
from  London  to  Chili.  The  amount  of  goods  shipped  by  Paw- 
ton,  and  his  motives  for  this  shipment,  will  be  found  in  his  let- 
ter. "In  consequence,"  says  Pawson,  "of  the  scarcity  of 
doubloons,  I  have  thought  it  adviseable  to  invest  my  own  funds 
in  merchandize,  in  hope  that  it  may  do  as  well,  and  because  I 
would  not  interfere  in  any  manner  with  your  business."  See 
also  his  letter  of  April  27,  1826. 

It  is  admitted,  that  the  contract  between  Donnell  and  Paw- 
ton  was  in  writing,  but  the  whole  of  the  written  contract  is  not 
before  the  court.  It  was  contained  in  part  in  the  shipping  arti- 
cles, and  in  part  in  the  letters  of  Donnell  before  referred  to.  In 
the  admissions,  the  monthly  pay  of  Pawson  as  stipulated  in  the 
shipping  articles,  is  stated : — but  what  else  is  contained  in  that 
paper  does  not  appear.  It  belonged  to  the  ship,  and  on  her  re- 


OF  MARYLAND.  47 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  us.  Pawson's  Adm'rs. — 1829. 

turn  to  Baltimore,  must,  with  the  other  papers  of  the  vessel, 
have  fallen  into  the  hands  of  Donnell.  It  is  not  suggested  in 
the  record,  that  this  document  has  been  lost  or  mislaid.  Why 
it  was  kept  hack,  is  not  explained,  nor  is  it  necessary  now  to 
inquire.  But  while  Donnell  withholds  the  paper,  and  gives  no 
proof  of  its  contents,  he  cannot  he  allowed  to  say  that  the 
usage  relied  on  hy  the  plaintiffs,  is  contrary  to,  or  inconsistent 
with  other  provisions  contained  in  the  agreement.  So  far  as  the 
contents  of  the  writings  are  before  the  court,  they  are  silent  as 
to  the  privilege  claimed  under  the  usage,  and  certainly  contain 
no  stipulation  in  opposition  to  it,  or  inconsistent  with  it.  They 
do  not  say  that  Captain  Pawson  may,  or  that  he  maj  not  ship 
goods  on  his  own  account  from  London  to  Coquimbo.  And  if  goods 
should  be  shipped  by  him,  they  do  not  say  whether  he  shall,  or 
shall  not  pay  freight.  The  contract,  as  we  are  allowed  to  see 
it,  is  silent  on  this  subject. 

The  writing  being  silent  in  relation  to  the  right  in  question, 
the  first  enquiry  is,  can  the  known  and  established  usage  of 
trade,  annex  to  this  contract  as  incident  to  it,  a  right  in  the  cap- 
tain to  ship  the  goods  herein  before  mentioned,  free  from 
freight?  This  inquiry  involves  two  questions.  First,  can  the 
known  and  established  usage  of  trade  give  to  either  of  these 
parties  a  right,  not  stipulated  in  the  writing  ?  Secondly,  if  usage 
may  give  such  a  right,  is  the  usage  in  question  a  reasonable 
usage,  or  is  it  unreasonable,  and  therefore  illegal  and  void? 

Upon  the  first  of  these  questions  the  appellees  insist,  that  in 
a  commercial  contract,  custom  and  usage  may  superadd  a  right 
to  either  of  the  parties,  concerning  which  the  written  contract 
between  them  is  silent. 

This  principal  of  law  is  a  familiar  one,  and  the  authorities  to 
maintain  it  numerous  and  undisputed.  The  court  are  referred 
to  a  few  of  them,  where  the  principle  is  clearly  and  distinctly 
set  forth.  3  Stark.  Ev.  1038.  Bank  of  Columbia  vs.  Magruder, 
6  Harr.  Sf  Johns.  180.  Renner  vs.  Bank  of  Columbia,  9  Wheat. 
581.  The  rule,  and  the  reason  of  the  rule,  is  so  well  stated  in 
Stark.  Ev.  1038,  that  the  passage  is  transcribed  for  the  court — 
"In  many  instances  extrinsic  evidence  of  custom  and  usage  is 


48  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

admissible  for  the  purpose  of  annexing  incidents  to  the  terms 
of  a  written  instrument  concerning  which  the  instrument  is  silent. 
The  principle  upon  which  such  evidence  is  admissible,  seems 
to  be  a  reasonable  presumption  that  the  parties  did  not  express 
the  whole  of  their  intention,  but  meant  to  be  guided  by  custom 
as  to  such  particulars  as  are  generally  known  to  be  annexed  by 
custom  and  usage  to  similar  dealings.  It  is  evident  that  in  com- 
mercial affairs,  and  all  the  other  usual  and  common  transactions 
of  life,  it  would  be  attended  with  great  inconvenience  that  the 
•well-known  ordinary  practice  and  usage  on  the  subject  should 
not  be  tacitly  annexed,  by  virtue  of  such  a  presumption,  to  the 
terms  of  a  contract,  and  that  the  parties  should  either  be  de- 
prived of  the  certainty  and  advantage,  to  be  derived  from  the 
known  course  of  dealing,  or  be  placed  under  the  necessity  of 
laboriously  specifying  in  their  contracts  by  what  particular 
usages  they  meant  to  be  bound." 

Indeed  even  in  the  case  of  a  sealed  instrument,  in  which 
parol  evidence  is  much  more  reluctantly  admitted,  than  in  the 
cases  of  commercial  contracts,  usage  may  be  given  in  evidence 
to  superadd  a  right  not  granted  by  the  terms  of  the  deed  itself, 
and  about  which  the  deed  is  silent.  Wiglcsworth  vs.  Dallison, 
Doug.  196,  197.  This  case  was  that  of  a  lease  by  deed;  and 
usage  was  received  in  evidence,  and  permitted  to  engraft  on  it 
an  additional  right  to  the  tenant,  not  mentioned  in  the  deed. 
It  was  a  right  which  by  the  force  of  usage  grew  out  of  the  re- 
lation of  landlord  and  tenant,  and  was  a  consequence  of  that 
relation  which  the  deed  had  created.  So  here  usage  may  en- 
graft on  the  contract  an  additional  right  to  the  captain  not  men- 
tioned in  the  written  instruments,  but  which  by  the  force  of 
usage  grows  out  of  the  relation  of  owner  and  captain,  and  is  a 
consequence  of  that  relation.  In  the  language  in  3  Stark.  Ev. 
1038,  before  quoted,  it  is  annexed  as  an  incident  to  the  terms 
of  the  contract. 

The  same  principle  is  recognized  in  Senior  vs.  Jlrmitage,  3 
Serg.  fy  Low,  71,  72,  where  Baron  Thompson  says,  "that  as 
to  the  special  agreement  in  order  to  control  the  custom,  it  must 
be  of  such  a  nature,  that  it  operated  upon  and  prevented  in 


OP  MARYLAND.  49 

Pawson's  Adtn'rs  vs.  Donnell.     Donneil  vs.  Pawson'a  Adm'rs. — 1829. 

express  terms  the  custom  from  attaching."  But  it  is  said  on  be- 
haJf  of  the  appellant,  (and  much  stress  seems  to  be  laid  on  the 
circumstance,)  that  the  written  contract  in  this  case  is  "  express," 
and  is  "  plainly  and  unambiguously"  set  out.  And  it  is  insisted, 
that  evidence  of  usage  is  admissible  in  those  cases  only,  where  the 
written  contract  is  ambiguous  and  doubtful  in  its  terms.  It 
would  be  a  sufficient  answer  to  this  argument  to  say,  that  it 
cannot  be  predicated  of  this  contract,  that  it  is  plainly  and  un- 
ambiguously set  out  in  the  writing.  It  has  been  already  re- 
marked, that  the  whole  written  contract  is  not  before  the  * 
court;  that  the  shipping  articles,  a  very  material,  and  in  this 
point,  the  most  material  part  of  the  contract  are  not  produced. 
They  must  be  presumed  to  be  in  the  possession  of  Donnell, 
and  surely  while  he  withholds  the  writing  itself,  he  can  hardly 
be  permitted  to  rely  on  the  clearness  and  perspicuity  of  its  lan- 
guage, in  order  to  bar  the  claim  of  the  plaintiffs.  It  is  suggest- 
ed indeed  in  the  argument,  that  the  shipping  articles  were  in 
the  usual  printed  form,  and  Mb.  on  Ship.  557,  has  been  refer- 
red to  by  the  counsel  for  the  appellant,  to  prove  that  the  lan- 
guage of  the  usual  printed  form  of  shipping  articles  is  express, 
plain  and  unambiguous.  It  need  only  be  answered,  that  there 
is  no  proof  to  support  the  suggestion.  The  shipping  articles 
may  have  been  in  the  usual  printed  form;  but  there  is  no  proof 
of  it.  No  argument,  therefore,  can  be  founded  on  the  assump- 
tion of  that  fact.  But  let  us  waive  this  objection  to  the  argu- 
ment of  the  appellants  and  concede,  argumenti  gratia,  that  the 
shipping  articles  were  in  the  usual  printed  form.  The  language 
then  is  plain  and  unambiguous :  the  instrument  is  silent  as  to  the 
privilege  in  question.  More  than  this,  the  appellant  can  hardly 
demand  in  behalf  of  the  written  contract.  It  is  denied  that  the 
power  of  usage  to  annex  a  new  incident  to  a  contract,  and  to 
give  a  right  not  mentioned  in  the  contract  to  one  of  the  parties, 
is  in  any  degree  dependent  on  the  perspicuity,  or  on  the  ambi- 
guity of  the  language  used  in  the  writing.  It  depends  on  the 
silence  of  the  written  contract,  in  relation  to  the  incidental 
right  claimed.  The  writing  may  be  express,  plain  and  unam- 
biguous, in  all  the  stipulations  contained  in  it,  and  yet  an  addi- 
VOL.  I— 7. 


60  CASES  IN  THE  COURT  OF  APPEALS 

Pawsoii's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawsou's  Adm'rs. — 1829. 

tional  right  may  be  superadded  by  the  force  of  usage,  concern- 
ing which  the  contract  is  silent. 

In  the  case  of  WiggfawBttk  vs.  Dallison,  in  Doug.  196,  197, 
the  deed  was  plain  and  unambiguous  in  all  of  its  provisions,  yet 
usage  superadded  an  additional  right  to  the  tenant,  beyond 
those  granted  by  the  deed.  And  the  same  principle  is  also 
clearly  set  forth  in  3  Stark.  Ev.  1038;  and  3  Scrg.  #  Lowb.  71, 
72,  before  referred  to,  and  made  to  depend  on  tla  sikncc  of  </tc 
writing,  and  not  upon  the  perspicuity  of  the  language,  and  the 
plainness  of  the  stipulations  contained  in  the  deed.  What  can 
be  more  plain  than  an  ordinary  promissory  note?  Yet  even 
local  usages,  brought  home  to  the  knowledge  of  the  parties, 
may  superadd  to  it  four  or  five  days  of  grace.  It  follows, 
therefore,  from  the  authorities  above  mentioned,  that  inasmuch 
as  the  written  contract  is  silent  as  to  the  privilege  in  question, 
it  may  be  superadded  by  usage.  The  opinion  of  the  court 
hypothetically  assumes,  that  the  usage  was  established  by 
proof,  and  leaves  it  to  the  jury  to  say,  whether  or  not  it  was  so 
established  by  testimony. 

It  is  not  understood  that  the  appellant  objects  to  the  opinion 
upon  the  ground  that  the  court  left  it  to  the  jury  to  find  from 
the  testimony,  whether  there  was  such  a  known  and  established 
usage  as  the  appellees  alleged.  There  was  evidence  for  and 
against  this  usage;  and  in  this  state  of  the  case,  it  is  not  con- 
tended by  the  appellant,  that  the  existence  of  the  usage  was  a 
question  for  the  court,  and  not  for  the  jury.  If  such  an  argu- 
ment should  be  offered,  the  following  authorities  conclusively 
shew,  that  it  was  a  fact  to  be  tried  by  the  jury,  and  not  by  the 
court  2  Stark.  Ev.  452.  Bank  of  Columbia  vs.  Magruder, 
6  Hair.  8f  Johns.  1 80.  Many  others  might  be  cited,  but  it  is  un- 
necessary to  multiply  cases  upon  a  point  not  to  be  controvert- 
ed. In  the  preceding  discussion,  the  power  of  custom  and 
usage  is  limited  to  cases  where  the  written  contract  is  silent, 
as  to  the  right  which  the  force  of  usage  is  invoked  to  sustain. 
But  it  has  been  extended  much  further  in  commercial  contracts. 
There  it  is  called  in  to  aid  in  the  construction  of  written  instru- 


OF  MARYLAND.  51 


Pawson's  Adm'rsas.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

ments.  Cutter  vs.  Powell,  6  T,  R.  320.  Mb.  on  Shipp.  213. 
(note.) 

In  the  first  of  these  two  cases  the  Judges  declare,  that  if  a 
usage  could  be  proved,  they  would  expound  the  contract  ac- 
cording to  the  usage,  although  it  appears  that  such  an  exposi- 
tion would  have  given  to  the  contract  a  different  meaning  from 
that  which,  in  their  judgment,  the  writing  imported.  In  other 
words,  the  usage  would  have  controlled,  the  language  of  the 
written  contract.  In  the  case  in  Mbot  above  referred  to,  the 
usage  was  in  opposition  to  the  express  words  of  the  written 
contract,  and  yet  the  usage  prevailed.  The  last  mentioned 
case  is  indeed  questioned  by  Starkie  in  the  note,  3  vol.  1038, 
and  perhaps  it  goes  farther  than  any  other  decision  on  the  subject. 
Yet,  the  judgment  of  Lord  Kenyan  on  such  a  point,  sanctioned 
as  it  would  seem  to  be  by  Chief  Justice  Abbot,  is  entitled  to 
high  respect.  We  are  not  called  upon  to  define  the  exact 
limits  of  the  power  of  usage  on  commercial  instruments.  It 
is  sufficient  for  us  that  the  contract  in  this  case  is  silent,  as  to 
the  privilege  or  right  claimed  by  the  appellees ;  and  if  there 
were  no  other  cases  on  this  subject,  but  those  in  relation  to 
bills  of  exchange  aud  promissory  notes,  they  would  be  abun- 
dantly sufficient  to  maintain  the  position  for  which  we  are  con- 
tending. The  words  of  these  instruments  are  plain  and  unam- 
biguous. Yet  common  usage  constantly  annexes  to  them  the 
incident  of  the  three  days  of  grace.  Three  days  of  grace  are 
the  right  of  the  debtor,  and  this  right  is  superadded  by  the 
force  of  usage  to  the  words  of  the  instrument.  Indeed,  so  om- 
nipotent is  the  power  of  usage  on  commercial  instruments,  that 
although  three  days  of  grace,  and  no  more  are  annexed  by  law 
as  an  incident  to  every  instrument  of  this  description,  yet  a 
mere  local  usage,  when  brought  home  to  the  knowledge  of  the 
parties,  is  sufficiently  powerful,  not  only  to  superadd  a  right, 
but  to  vary  it  from  the  right  which  the  law  annexes.  Rcnner 
vs.  Bank  of  Columbia,  9  Wheat.  581.  Bank  of  Columbia  vs. 
Magruder,  6  Harr.  ^  Johns.  180. 

It  may  be  therefore  concluded,  that,  inasmuch  as  the  contract 
is  silent  in  relation  to  the  privilege  in  question,  evidence  was 

ittfH 


52  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'ra  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

admissible,  to  sho\v  that  by  the  usage  of  trade  Captain  Paicson 
had  a  right  to  ship  his  goods  free  from  freight.  And  if  the 
usage  was  established  by  proof,  it  was  a  part  of  the  contract 
and  as  binding  on  the  parties,  as  if  it  had  been  introduced  into 
the  writing.  In  the  language  of  the  court,  in  Sank  of  Colum- 
bia vs.  Magrudcr,  6  Harr.  fy  Johns.  180,  it  enters  into  the  con- 
tract, and  becomes  a  constituent  part  of  it. 

Whether  the  usage  was  proved  to  the  satisfaction  of  the 
jury,  does  not  appear;  nor  is  it  material  in  this  part  of  the  con- 
troversy. The  opinion  of  the  court  is  founded  on  the  hypothe- 
sis, that  the  jury  should  find  from  the  testimony,  that  the  usage 
was  a  known  and  established  one,  and  that  "  it  was  so  well 
known  and  established,  that  it  must  be  suppposed  to  have  en- 
tered into  the  contemplation  of  the  parties  at  the  time  they 
originally  made  the  contract."  And  if  we  have  succeeded  in 
establishing  the  rule  of  law  before  stated,  then  the  opinion  of 
the  County  Court  is  free  from  error,  and  ought  to  be  affirmed, 
unless  the  usage  in  question  is  unreasonable,  and  therefore  illegal 
and  void.  This  brings  us  to  the  second  question  before  men- 
tioned. 

2.  Is  the  usage  alleged  by  the  appellees  a  reasonable  usage, 
or  is  it  unreasonable,  and  therefore  illegal  and  void? 

This  point  assumes,  that  the  custom  is  proved  to  be  a  known 
and  established  one.  The  appellant  contends,  that  although  it 
be  proved  to  the  satisfaction  of  the  jury,  that  the  captain  under 
the  circumstances  stated  in  the  record,  was  not  chargeable 
with  freight  according  to  the  usage  of  trade : — And,  although 
this  usage  of  trade  "  was  so  well  known  and  established,  that 
it  must  be  supposed  to  have  entered  into  the  contemplation  of 
the  parties,  at  the  time  they  originally  made  the  contract." 
Yet  the  usage  so  known  and  established,  and  so  proved  is  un- 
reasonable, and  therefore  illegal  and  void.  This  objection  does 
not  question  the  power  of  nsage  to  give  additional  rights  to  the 
captain,  not  mentioned  in  the  contract,  it  merely  denies  its 
power  to  give  the  particular  privilege  claimed.  The  objection 
applies  to  the  nature  and  character  of  the  usage,  which  is  pro- 


OF  MARYLAND.  53 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs — 1829. 

nounced  to  be  unreasonable,  and  on  that  account  alone  illegal 
and  void. 

It  is  difficult  to  imagine  how  a  usage  proved  to  be  as  well 
known  and  established,  as  the  opinion  of  the  court  requires, 
could  be  unreasonable.  Men  are  not  apt  to  enter  voluntarily 
and  continually  into  contracts,  contemplating  upon  every  occa- 
sion an  incident  to  the  contract,  which  will  subject  them  to  un- 
reasonable imposition.  The  opinion  of  the  court  requires,  that 
the  usage  shall  be  so  well  known,  that  the  appellant  must  be 
presumed  to  have  looked  to  it  when  he  bargained.  Unless  it 
was  proved  to  this  extent,  the  jury  could  not  regard  it,  and 
were  indeed  forbidden  to  regard  it. 

The  usage  in  question  then  could  not  have  been  proved,  un- 
less there  had  been  a  general  concurrence  and  consent  among 
the  ship  owners  of  Baltimore,  for  a  length  of  time,  sufficient  to 
make  it  an  established  custom.  It  can  scarcely  be  credited, 
that  any  class  of  men,  would  so  long  unite  together  in  building 
up  a  system  of  dealing,  unreasonable  and  unjust  to  themselves. 
And  no  class  of  men  are  less  likely  to  commit  such  a  folly,  than 
the  merchants.  The  mere  fact,  therefore,  that  it  had  become  a 
known  and  established  usage,  is  powerful  evidence,  that  it  must 
have  been  found  by  experience  to  be  convenient  and  useful 
to  both  parties.  Yet  it  is  not  necessary  for  us  to  prove  the 
usage  reasonable;  the  appellant  must  prove  it  to  be  unreasonable. 

11 A  custom  may  be  good  although  the  particular  reason  of  it 
cannot  be  assigned,  for  it  sufficeth  if  no  good  legal  reason  can 
be  assigned  against  it." — 2  Stark.  Ev.  447,  and  the  authorities 
there  cited. 

But  is  there  any  thing  unreasonable  in  the  usage  alleged  ? 
Can  any  good  reason  be  assigned  against  it?  The  counsel  for 
the  appellant  have  indeed  urged,  that  if  the  usage  in  question 
were  established,  a  captain  might  load  the  ship  on  his  own  ac- 
count, contrary  to  the  owner's  wishes — that  he  might  take 
goods  for  others  for  his  own  profit,  or  to  the  injury  of  the  owner 
— that  he  might  take  contraband  articles,  and  thereby  subject 
the  ship  to  seizure — that  he  might  fill  the  ship  with  passengers, 
and  that  those  passengers  might,  by  being  belligerent  in  regard 


54  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Dunnell.     Donnell  rs.  Pawson's  Adm'rs.  —  ls-.»;i. 


to  some  other  nation,  subject  the  owner  to  the  loss  of  his  ship, 
or  might  in  some  other  way  do  him  irreparable  injury. 

It  is  an  easy  matter  to  fancy  a  usage  that  would  be  full  of 
evil,  and  then  point  out  the  evils  which  would  spring  from  it.  It 
will  be  far  more  dillicult,  however,  to  find  them  in  the  custom 
sanctioned  by  the  County  Court.  It  authorizes  none  of  the  acts 
above  mentioned,  and  permits  no  injury  to  the  owner  in  any 
shape.  The  usage  in  question  is  confined  in  express  terms  to 
the  goods  shipped  by  Captain  Pavcson  on  his  own  account.  It 
does  not  extend  to  any  other  goods,  and  does  not  embrace  the 
goods  shipped  by  Goddard,  or  by  any  other  person  but  the  cap- 
tain himself.  It  does  not  authorize  him  to  take  goods  for  ano- 
ther, either  on  freight,  or  free  from  freight.  The  court  have 
not  decided  that  any  usage  would  deprive  Donnell  of  the  right 
to  charge  freight  on  the  goods  shipped  by  Goddard. 

The  court  have  not  said  that  any  usage  would  justify  him  in 
taking  one  or  more  passengers,  either  for  his  own  profit  or  the 
profit  of  his  owner.  It  is  not  meant  to  question  the  validity  of  a 
usage,  to  take  a  reasonable  number  of  passengers  who  would 
not  encumber  the  ship  :  but  we  desire  to  shew  that  no  question 
upon  that  subject  is  involved  in  the  opinion  now  under  discus- 
sion. The  usage,  of  which  the  court  speaks,  relates  to  the 
goods  shipped  by  Captain  Pawson  on  his  own  account  ;  and  not 
to  the  passenger  from  London  to  Chili,  nor  to  the  goods  of 
Goddard. 

The  usage  in  relation  to  the  captain's  goods  is  also  confined  to 
the  circumstances  of  the  case  before  the  court  There  must 
have  been,  says  the  court,  a  known  and  established  usage  that 
the  captain  "under  the  above  circumstances,  was  not  chargeable 
irith  freight."  They  do  not  speak  of  a  usage  extending  further, 
or  giving  a  right  under  any  other  circumstances,  or  to  any  other 
extent. 

And  what  were  the  "above  circumstances"  to  which  the  court 
limited  their  opinion  ?  The  ship  was  to  go  in  ballast  —  the  space 
occupied  by  the  goods  would  have  been  vacant  —  the  amount 
shipped  was  within  the  reasonable  compass  of  his  private  and 
separate  trade  —  it  interfered  with  none  of  the  owner's  plans  — 


OF  MARYLAND.  55 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs. — 1829. 

did  not  delay  the  ship — did  not  impede  her  voyage,  or  in  any 
respect  do  injury  to  the  owner,  or  put  to  hazard  his  pro- 
perty, or  interfere  with  his  plans  of  commerce — and  the  cap- 
tain was  induced  to  take  these  bulky  articles  in  order  the  better 
to  promote  the  views  and  the  interest  of  the  owner,  and  did 
thereby  promote  them.  His  original  design  was,  it  would  seem, 
to  take  doubloons,  upon  which  it  will  hardly  be  contended  that 
freight  would  have  been  chargeable ;  he  changed  his  intention, 
because  he  would  not  go  into  the  market  to  compete  with  his 
owner,  or  take  from  the  quantity  the  owner  desired  to  procure. 
Is  there  any  thing  unreasonable  in  a  usage  that,  under  such  cir- 
cumstances^ the  captain  is  not  chargeable  with  freight?  It 
would  rather  seem  that  he  must  be  a  most  unreasonable  owner 
who  would  demand  it.  It  surely  does  not  work  injustice. 

The  counsel  for  the  appellant  have  cited  Pothier  on  J\fer. 
Cont.  14,  32  and  135,  to  prove  that  the  owner  is  entitled  to  the 
use  of  the  whole  ship,  and  that,  by  an  express  article  of  the 
French  commercial  code,  the  captain  can  take  nothing  without 
paying  freight,  except  what  he  may  put  in  his  chest.  The  au- 
thority cited  is  certainly  entitled  to  very  high  respect  on  all 
questions  of  commercial  law.  The  right  of  the  owner  to  dispose 
of  his  vessel  as  he  pleases  is  not  disputed  on  our  part ;  and  it 
depends  upon  his  will  whether  the  goods  may  or  may  not  be 
taken  on  board,  and  whether  freight  shall  or  shall  not  be  charg- 
ed. And  it  is  because  he  has  this  absolute  dominion  over  the 
freight  that  he  may  grant  to  the  captain,  or  any  one  else,  the 
right  to  take  goods  free  from  freight.  If  by  express  written 
contract  he  had  given  the  privilege  in  question  to  the  captain, 
nobody  would  doubt  the  validity  of  the  grant ;  and  if  by  the 
force  of  usage,  the  privilege  is  an  incident  to  the  contract,  then 
such  usage  enters  into  the  essence  of  the  contract,  and  becomes. 
a  constituent  part  of  it.  It  is  as  obligatory  upon  the  parties  as- 
if  it  had  been  set  forth  in  the  writing.  The  privilege  then  is 
derived  from  the  contract  of  the  owner  himself.  In  other 
words,  it  is  granted  by  him.  It  is  not,  therefore,  inconsistent 
with  his  rights,  but  is  created  by  the  exercise  of  his  rights.  It 
cannot  be  illegal  and  void  on  that  account,  for  the  owner  may, 


56  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson's  Adm'rs — 1829. 

by  his  contract,  lawfully  grant  it.     The  usage  therefore  is  not 
inconsistent  with  the  right  of  property  in  the  owner. 

Neither  is  it  unreasonable  and  void,  by  reason  of  its  being 
against  law.  If  we  had  a  positive  legislative  enactment  like 
the  French  ordinance  in  Poth.  135,  relied  on  by  the  appellant, 
then  any  usage  in  opposition  to  the  statute  would  be  illegal  and 
void.  But  we  have  no  statute  against  it ;  nor  have  we  any  ju- 
dicial decision  against  it;  nor  is  it  inconsistent  with  any  principle 
of  law.  Pothie.r's  work  is  very  high  evidence  of  commercial 
usages,  because  most  of  the  principles,  contained  in  the  ordinan- 
ces, have  been  adopted  as  usages  of  trade  by  the  commercial 
world.  Still  it  is  nothing  but  evidence,  and  not  conclusive  evi- 
dence. All  of  the  ordinances  have  not  been  adopted,  and  they 
are  binding  in  so  far  only  as  usage  has  made  them  so :  and  where 
they  do  bind,  it  is  by  the  force  of  usage  alone.  If,  therefore, 
the  custom  has  been  otherwise,  and  is  proved  to  have  been 
otherwise,  the  one  proved  must  govern.  This  court  has  deci- 
ded that  even  a  usage,  acknowledged  and  settled  by  our  own 
judicial  decisions  to  be  the  law  of  trade,  may  be  altered  by  a 
mere  local  custom,  when  brought  home  to  the  knowledge  of  the 
parties.  Besides,  what  is  the  usage  in  one  place,  is  not  neces- 
sarily the  usage  in  another;  and  what  is  the  usage  in  a  trade  to 
one  place,  is  very  often  not  the  usage  in  a  voyage  to  another. 
The  usage  depends  upon  the  place,  and  the  voyage,  and  the 
trade  in  which  the  vessel  is  engaged.  And  the  usage  is  itself 
the  law  of  the  trade.  We  know  very  well  that  usages  often 
change ;  and  what  is  the  law  of  trade  at  one  time,  is  not  always 
the  law  at  another.  The  power  that  makes  the  law  repeals  it. 
The  new  usage,  when  it  has  once  become  the  known  and  estab- 
lished one,  abrogates  the  old. 

If  we  are  right  in  the  positions  endeavoured  to  be  maintained, 
then  the  usage  in  question  is  not  contrary  to  the  principles  of 
justice,  is  not  inconsistent  with  the  owner's  right  of  property, 
and  is  not  contrary  to  any  positive  rule  of  law.  We  cannot, 
therefore,  perceive  how  such  a  usage  can  be  deemed  unreason- 
able, and  therefore  illegal  and  void. 


OF  MARYLAND.  57 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs 1829. 

It  may  be  concluded  then,  1st,  that  a  usage  which  is  not  un- 
reasonable, may  superadd  a  right  not  expressed  in  the  contract — 
and  2dly,  that  the  one  in  controversy  is  not  unreasonable.  And 
if  these  propositions  have  been  established,  it  follows  that 
when  the  contract  was  made  between  the  parties,  the  right  to 
ship  the  merchandize  in  question,  free  from  freight,  vested  in 
Pawson  by  virtue  of  the  contract,  and  consequently  Donnell  had 
no  right  to  the  set  off  which  he  claimed. 

But  in  order  to  maintain  the  opinion  of  the  court,  it  is  not 
even  necessary  to  insist  that  the  right  under  it  was  a  positive 
and  absolute  one,  vesting  in  Pawson  at  the  time  the  contract 
was  made.  We  might  concede  that  a  usage  to  that  extent 
would  be  unreasonable.  We  certainly  make  no  such  concession, 
because  we  are  not  aware  that  any  principle  of  commercial  law 
requires  us  to  do  so.  But,  waiving  the  argument  already  offer- 
ed to  prove  that  the  usage  to  the  extent  claimed  is  not  unrea- 
sonable, yet  if  its  operation  be  restrained  to  that  of  a  license  to 
ship  under  such  circumstances,  revocable  at  the  will  of  the 
owner,  it  will  hardly  be  contended  that  there  is  any  thing  un- 
reasonable in  it.  And  if  it  be  limited  to  a  mere  license,  in  the 
absence  of  orders  to  the  contrary,  still  Donnell  was  not  enti- 
tled to  the  freight. 

It  will  be  observed  that  there  was  no  prohibition  on  the  part 
of  Donnell  to  take  the  goods  in  question.  There  is,  on  the  con- 
trary, an  almost  necessary  implication,  in  DonneWs  first  letter, 
that  he  might  do  it.  He  says,  "  but  it  is  understood  that  you  are 
not  to  put  any  copper  or  heavy  articles  on  board  at  Chili." 
The  prohibition  for  that  particular  part  of  the  voyage,  and  the 
perfect  silence  of  Donnell,  with  respect  to  the  voyage  from 
London  to  Chili,  strongly  implies  an  actual  permission.  But 
we  do  not  put  the  point  on  the  ground  of  actual  or  implied  per- 
mission in  the  writing  •,  our  object  is  to  shew  that  it  was  not 
forbidden  in  the  writing. 

It  has  been  already  remarked  that  the  usage,  sanctioned  by 

the  court,  is  a  usage  confined  to  the  circumstances  of  this  case. 

It  is  one  of  its  circumstances,  that  there  was  no  prohibition  to 

do  the  act.    If  then  it  was  the  usage  of  trade,  not  to  charge 

VOL.  I— 8. 


58  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.    Donncll  vs.  Pawson's  Adm'rs — 1829. 

freight  on  the  captain's  private  adventure,  when  the  ship  was 
in  ballast,  unless  the  captain,  was  notified  that  it  would  be 
charged — if  the  usage  was  in  the  nature  of  a  license  only,  and 
revocable  at  the  will  of  the  owner,  it  would  still,  as  the  license 
had  been  acted  on,  have  become  compulsory  and  binding,  and 
could  not  be  recalled,  and  Donnell  would  not  be  entitled  to  de- 
mand the  freight.  Winter  vs.  Brockwell,  8  East.  308,  is  full  to 
this  point.  And  we  think  it  would  be  difficult  to  shew  that  a 
usage  was  unreasonable,  which  merely  inferred  a  license,  and 
did  not  become  a  vested  right  in  the  captain  and  compulsory  on 
the  owner,  until  it  had  been  executed.  This  point  need  not  be 
enlarged  on,  as  it  cannot  be  deemed  a  necessary  one  to  maintain 
the  opinion  given.  It  may  be  proper,  however,  to  remark,  that 
even  in  DonneWs  account,  Pawson  is  not  charged  with  freight 
on  these  goods,  although  freight  is  charged  on  Godaard^s  cor- 
dage, to  the  amount  of  more  than  one  fourth  of  what  it  sold  for. 
If  the  spirit  which  concocted  that  account,  could  not  work  itself 
up  to  charge  freight  on  Pawscni's  goods,  the  usage  to  the  con- 
trary must  indeed  have  been  well  known  and  established.  The 
omission  to  do  so  in  such  a  paper,  would  seem  of  itself  conclu- 
sive proof  of  the  usage,  and  of  the  reasonableness  of  the  usage 
too. 

In  contending  that  the  usage  was  a  reasonable  one,  we  have 
stated  that  the  goods  did  not  exceed  the  ordinary  extent  of  a 
captain's  private  trade  in  such  a  ship.  The  amount  that  a  cap- 
tain may  ship,  must  depend  on  the  limits  of  the  usage.  The 
amount  actually  shipped  appears  in  the  evidence,  and  was  one 
of  the  "circumstances"  by  which  the  jury  were  to  try^  whe- 
ther the  shipment  was  within  the  boundaries  of  a  known  and  es- 
tablished usage.  If  it  exceeded  the  amount  fixed  by  the  usage, 
it  was  not  protected  by  the  opinion  of  the  court ;  and  whether  it 
did,  or  did  not  exceed  it,  was  a  question  of  fact  for  the  jury, 
and  was  one  of  the  "  circumstances"  by  which  they  were  to  be 
governed.  This  is  mentioned  in  order  to  shew  that  the  usage 
contended  for  does  by  no  means  imply  the  right  of  the  captain 
to  ship  any  quantity  of  merchandize  he  may  think  proper,  how- 
ever large.  The  amount,  like  other  customs,  must  depend  on 


OF  MARYLAND.  59 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

the  nature  of  the  trade,  and  the  size  of  the  vessel.  It  must  not 
exceed  the  ordinary  and  reasonable  extent  of  the  private  trade 
of  a  captain  in  such  a  vessel,  engaged  in  such  a  voyage.  There 
is  a  standard  therefore  sufficiently  certain,  whereby  the  jury 
may  try  it — a  rule  as  certain  as  that  whereby  they  try  "rea- 
sonable skill  and  judgment"  and  "  reasonable  diligence,"  when 
those  questions,  as  happens  very  often,  are  questions  for  the 
jury,  and  not  for  the  court.  In  this  case,  the  amount  shipped, 
including  commission,  &c.  was  1115Z.  13s.  3d.  Pawsoniook 
with  him  for  his  private  trade,  H65Z.  9s.  Id. — and  this  sum  it 
appears,  was  taken  with  DonnelVs  consent  and  knowledge,  and 
in  a  bill  drawn  by  him  on  his  agent  in  London.  Moreover, 
Donnell  procured  the  amount  shipped,  to  be  insured,  and  char- 
ged a  commission  on  it.  These  facts  furnish  evidence  from 
which  the  jury  might  very  well  have  found,  that  the  merchan- 
dize in  question,  did  not  exceed  the  ordinary  private  trade  of 
the  captain  in  such  a  ship  on  such  a  voyage :  and,  that  a  private 
trade  of  this  description  is  well  known  and  understood,  appears 
by  Mb.  on  Ship.  213.  The  other  circumstances  to  which  the 
usage  was  confined — that  is,  that  the  ship  was  in  ballast — that 
it  did  not  delay  her — that  it  did  not  injure  the  owner,  nor  inter- 
fere with  the  objects  he  had  in  view — that  it  was  done  for  the 
purpose  of  advancing  the  interest  of  the  owner — that  it  was  not 
forbidden — that  the  act  was  done  before  freight  was  claimed — 
do  not  appear  from  the  evidence  to  have  been  susceptible  of 
controversy.  They  might  surely  be  all  found  by  the  jury  upon 
the  evidence  as  it  appears  in  the  record.  And  if  these  "  circum- 
stances"— these  facts  were  all  found  by  the  jury,  it  is  submitted 
to  this  court  to  say,  whether  the  usage  claimed  can  be  deem- 
ed to  be  against  justice — against  positive  law — or  inconsistent 
with  the  rights  of  the  owner. 

Second  Point. — Are  Paicson's  administrators  entitled  to  recov- 
er any  part  of  the  $3000,  mentioned  in  Donnell's  letter  of 
November  18,  1819  ?  And  if  they  are  entitled  to  recover 
a  part,  what  proportion  are  they  entitled  to  recover,  and 
by  what  rule  is  that  proportion  to  be  ascertained  ? 


CO  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'ra  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 18:2!). 

The  appellant  has  raised  three  questions  on  this  part  of  the 
controversy;  and  these  questions  arc  supposed  to  arise  under 

the  3d,  4th,  5th,  7th  and  8th  exceptions. 
1st.  He  insists  that  Pawson  violated  his  duty  as  supercargo, 

and  thereby  forfeited  all  claim  to  wages  in  that  character. 
2d.  That  the  compensation  in  question  is  an  entire  one,  to  be 

paid  for  an  entire  service,  and  is  not  subject  to  apportionment, 

by  a  part  performance  of  the  service. 
3d.  That  if  it  be  subject  to  apportionment,  yet  it  ought  not  to 

be  apportioned  in  the  manner  directed  by  the  County  Court. 

It  is  of  importance  to  attend  to  the  exceptions  to  which  these 
objections  are  referred ;  for  it  will  be  found  that  some  of  the 
questions  made  here,  are  not  warranted  by  the  record,  and  do 
not  appear  to  have  been  decided  by  the  County  Court. 

1.  The  objection,  first  above  stated,  is  said  to  arise  under  the 
3d,  7th  and  8th  exceptions.  To  support  this  objection,  Pawson 
is  charged  with  misconduct  in  the  following  instances  : — 1st,  in 
taking  the  cordage  on  freight:  2d,  in  taking  the  passenger:  3d, 
in  concealing  these  acts ;  and  4th,  in  the  shipment  of  the  gold 
and  silver  bullion  at  Guasco. 

The  Sth  exception  certainly  does  not  bring  up  either  of  these 
objections.  For,  according  to  the  principle  maintained  by  the 
appellant  in  this  exception,  the  appellees'  right  to  recover  any 
part  of  the  §2000  is  made  to  depend  on  the  receipt  by  Donnell 
on  board  his  ship  of  a  sufficient  quantity  of  copper  to  exhaust 
the  funds,  placed  by  him  in  the  hands  of  Pawson.  The  prayer, 
is,  that  unless  "  he  received  on  board  his  ship"  this  quantity  of 
copper,  the  appellees  cannot  recover  this  part  of  his  wages.  If 
this  notion  be  correct,  then  although  Pawson  most  faithfully  and 
most  skilfully  discharged  his  duty  according  to  the  very  letter 
of  his  instructions,  still  he  is  not  entitled  to  recover  his  wages, 
unless  DonnelVs  funds  had  the  good  fortune  to  come  safe  to  his 
hands  in  his  own  ship.  Such  a  proposition  can  hardly  be  sanc- 
tioned by  this  court.  The  exception  obviously  raises  no  ques- 
tion on  the  legal  effect  of  any  supposed  misconduct  on  the  part  of 
Pawson.  It  docs  not  suggest  that  any  misconduct  has  been  com- 


OF  MARYLAND.  61 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

mitted  by  him  ;  and  if  objections  exist  on  that  score,  they  can- 
not be  considered  under  this  exception. 

It  is  also  supposed  by  the  appellant,  that  the  acts  of  miscon- 
duct above  stated  furnish  a  sufficient  ground  for  the  absolute 
direction  that  the  plaintiffs  were  not  entitled  to  recover,  prayed 
for  in  the  1th  exception. 

If  it  be  even  admitted,  for  the  sake  of  the  argument,  that  the 
acts  of  misconduct  above  mentioned  might  bar  the  claim  for 
wages  as  supercargo,  yet  the  court  even  in  that  case  could  only 
have  given  a  hypothetical  direction,  and  could  not  have  given 
the  absolute  one  asked  for  by  the  appellant.  For  each  of  the 
acts  above  stated  may,  or  may  not  be  acts  of  misconduct.  For 
example — the  taking  of  the  passenger  is  not  of  itself  an  act  of 
misconduct  i..  the  captain ;  for  merchant  vessels  generally  de- 
sire to  obtain  passengers.  And  if  the  passenger  in  this  case  was 
taken  by  the  permission  of  Donnell,  express  or  implied,  it  would 
not  be  a  violation  of  Pawson's  duty ;  and  whether  such  assent 
was  or  was  not  to  be  inferred  from  the  evidence,  was 
a  question  of  fact;  and  therefore  a  question  for  the  jury. 
So  too  as  to  the  concealment  alleged  in  the  argument;  it 
was  a  question  of  fact  for  the  jury.  And  if  the  shipment 
of  the  silver  and  gold  be  a  breach  of  duty  in  any  body,  it 
is  surely  a  question  of  fact,  whether  it  was  or  was  not  shipped 
by  Pawson  or  by  his  directions.  If,  therefore,  it  had  been  the 
intention  of  the  counsel  for  the  appellant,  to  found  this  prayer  on 
any  of  these  supposed  acts  of  misconduct,  the  prayer  offered 
should  have  been  hypothetical ;  that  is,  "  if  the  jury  find  from 
the  evidence,  that  the  passenger  was  taken  by  Pawson,  contra- 
ry to  his  duty  as  supercargo;"  or,  "if  the  jury  find  from  the 
evidence  that  Pawson  concealed  his  conduct  from  the  owner ;" 
or,  "  if  the  jury  find  from  the  evidence  that  the  silver  and  gold 
was  shipped  at  Guasco  by  Pawson,  or  by  his  orders,  contrary 
to  his  duty  as  supercargo.1'  In  this,  or  a  like  form  of  prayer, 
the  question  of  law  would  have  been  put  to  the  court,  whether 
such  misconduct  forfeited  his  wages.  But  as  the  prayer  stands  in 
the  record,  the  court  were  called  on  to  decide  the  questions  of 
fact,  as  well  as  the  questions  of  law.  If  there  were  no  other 


62  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adra'rs  vs.  Donnell.     Donnell  r».  Pawson's  Adm'rs.  —  IH-.'H. 


objections,  this  alone  would  have  been  sufficient  to  warrant  the 
opinion  given  by  the  court  in  the  7th  exception. 

In  speaking  of  the  acts  of  misconduct  under  the  7th  excep- 
tion, the  shipment  of  the  cordage  is  not  mentioned.  Because 
tliis  item  is  distinctly  presented  by  the  appellant  in  the  3d  ex- 
ception, and  it  is  therefore  unimportant  whether  he  can  or  can- 
not avail  himself  of  it,  under  the  7th.  But  the  alleged  miscon- 
duct in  relation  to  the  passenger;  the  concealment;  and  the  ship- 
ment of  the  gold  and  silver,  are  not  embraced  in  the  3d  excep- 
tion; and  if  these  objections  cannot  be  brought  under  the  7th 
and  8th,  it  is  useless  to  discuss  them  ;  for  they  are  not  present- 
ed by  the  record.  We  have  already  shewn,  that  these  three 
items  of  misconduct  cannot  be  sustained  under  the  7th  and  8th 
exceptions  ;  neither  are  they  included  in  the  third  ;  for  this  ap- 
plies to  the  misconduct  of  "  taking  on  freight  prohibited  arti- 
cles," and  to  no  other  misconduct.  Now  jhe  passenger  and  the 
concealment  are  obviously  not  within  this  description  ;  and  the 
gold  and  silver  were  not  taken  on  freight,  but  were  put  on 
board  as  the  property  of  the  owner  and  the  captain,  and  there- 
fore are  not  embraced  in  the  supposed  misconduct,  described  in 
the  3d  exception.  We  cannot,  therefore,  be  called  on  to  de- 
fend ourselves  against  these  three  instances  of  supposed  mis- 
conduct. These  questions  are  not  brought  up  by  the  record. 

With  respect  to  the  remaining  item  in  the  account  of  miscon- 
duct ;  that  is  —  the  cordage  which  is  the  foundation  of  the  3d  ex- 
ception, it  is  abundantly  answered  by  the  treaty  between  the 
United  States  and  Spain.  The  cordage  was  not  prohibited  as 
contraband  ;  1  vol.  Laws  of  the  United  States,  p.  272.  Paw- 
son  did  not,  therefore,  in  this  particular  take  on  freight  prohibit- 
ed articles. 

But  let  it  be  supposed,  that  these  questions  of  supposed  mis- 
conduct are  all  brought  here  by  the  7th  exception,  and  that  this 
court  will  decide  the  fact  as  well  as  the  law. 

The  case  of  the  cordage  is  already  answered  ;  there  was  in 
fact  no  misconduct,  because  it  was  not  a  prohibited  article. 

In  the  case  of  the  passenger,  if  any  misconduct  was  commit- 
ted it  was  done  as  captain  ;  and  if  any  wages  were  forfeited  by 


OF  MARYLAND.  63 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawsori's  Adm'rs. — 1829. 

it,  it  must  have  been  the  wages  of  captain.  Yet  the  right  to 
these  wages  is  not  dispute  d.  They  are  admitted  in  DonneWs 
account.  The  wages  now  in  question  are  the  wages  as  super- 
cargo, and  they  are  so  called  by  the  appellant  in  the  prayers  in 
the  3d,  4th  and  5th  exceptions;  and  the  recovery  is  resisted 
altogether  on  that  ground.  If  the  conduct  of  Pawson  forfeits 
any  wages,  it  must  forfeit  the  wages  of  the  captain,  rather  than 
those  of  the  supercargo. 

But  if  the  taking  of  the  passenger  be  considered  as  the  act  of 
the  supercargo,  or  that  being  done  by  him  as  captain,  it  shall 
nevertheless  affect  his  title  to  wages  as  supercargo,  still  it  is  in- 
cumbent upon  the  appellant  to  prove,  that  this  act  was  a  viola- 
tion of  Pawson's  duty.  He  makes  the  charge ;  he  must  there- 
fore prove  it.  He  must  prove  that  he  did  the  act,  and  that  the 
act  done  was  a  violation  of  his  duty.  The  evidence  is,  that 
the  act  in  question  was  not  a  violation  of  his  duty  to  Donnell, 
for  it  was  sanctioned  by  Donnell.  See  DonneWs  account.  In 
the  second  item  of  this  account,  he  charges  Pawson  with  "  short 
credit,'allowed  for  passenger  from  London,  £25."  The  words 
in  which  this  charge  is  made  strongly  imply,  that  the  passen- 
ger was  taken  in  the  ordinary  course  of  business,  and  was  a 
matter  to  be  adjusted  in  the  account  between  them,  and  not  a 
matter  to  forfeit  all  title  to  wages,  on  the  part  of  Pawson. 
Donnell  claims  the  benefit  of  the  contract  made  by  Pawson 
with  the  passenger,  and  thereby  certainly  adopts  it,  and  treats 
ft  as  a  contract  made  by  his  agent  for  him.  He  differs  indeed 
with  Pawson  as  to  the  manner  in  which  the  passage  money  is  to 
be  distributed.  But  no  question  upon  that  subject  is  presented 
by  the  exceptions.  The  question  here  is,  did  the  act  of  taking 
the  passenger  forfeit  his  wages  as  supercargo  ?  Not,  how  is 
passage  money  to  be  divided  ?  And  it  is  apparent  from  the  evi- 
dence, that  Donnell  believed  Pawson  to  have  acted  in  this  re- 
spect within  the  scope  of  his  duty. 

The  charge  of  improper  concealment  is  so  entirely  unsupport- 
ed by  the  proof,  that  we  are  at  a  loss  to  know  what  part  of  the 
testimony  is  relied  on  to  support  it.  It  is  a  question  of  fact  not 


64  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adni'rs  vs.  Donncll.     Donncll  rs.  Pawson's  Ailiur's.  —  is-,1;). 


involved  in  any  one  of  the  exceptions,  and  not  countenanced  by 
any  part  of  the  testimony. 

The  charge  of  misconduct,  in  relation  to  the  shipment  of  the 
gold  and  silver,  is  not  better  supported  than  that  of  conceal- 
ment. The  gold  and  silver  was  shipped  after  Pawson's  death. 
It  was  shipped  at  Gwsco,  (see  account  of  Edwards  fy  Stewart.) 
Captain  Pawson  died  at  Coquimbo,  before  the  ship  sailed  for 
Guasco-  It  has  been  said  that  the  shipment  was  made  by  his 
orders,  although  made  after  his  death.  This  is  a  mistake.  He 
left  no  orders  on  the  subject.  From  the  beginning  of  his  illness, 
he  was  incapable  of  giving  any.  (See  letters  of  Edwards  fy 
Stewart,  December  8,  1820,  and  January  19,  1821.)  We 
might  indeed  safely  admit  that  he  intended,  if  he  had  lived,  to 
have  shipped  the  silver  and  gold.  But  even  if  this  shipment 
would  have  forfeited  his  wages,  still  as  it  is  perfectly  clear  that 
he  did  not  do  the  act,  nor  cause  it  to  be  done,  it  can  never  be 
contended  that  the  mere  intention  to  do  it  would  work  a  forfei- 
ture. There  can  be  no  such  principle  known  to  the  common 
law.  It  is  contrary  to  its  whole  spirit  and  provisions.  Besides, 
the  shipment  did  not  put  in  jeopardy  the  ship,  nor  the  owner's 
interest  therein. 

In  this  case  too,  as  well  as  in  that  of  the  passage  money,  the 
evidence  is  that  Donnell  adopted  the  acts  of  Paieson,  and  sanc- 
tioned them  by  his  assent.  He  was  informed  of  Pawson's  in- 
tention to  ship  the  silver.  (See  letter  of  November  4,  1820.) 
This  silver  was  to  be  a  part  of  the  6,000  dollars  which  Don- 
nell was  requested  to  insure.  He  did  ensure,  and  charge  a  pre- 
mium for  his  agency  in  procuring  the  insurance.  (See  his  ac- 
count.) He  has  thus  made  a  profit  on  this  shipment,  and  took 
no  steps  whatever  to  indicate  to  Pawson  that  he  disapproved  of 
it  It  forms  no  part  of  his  defence  in  his  account.  Surely,  all 
of  these  circumstances  furnish  conclusive  evidence,  that  Don- 
nell did  not  deem  this  shipment  a  violation  of  Pawson's  duty  to 
him.  He  regarded  it,  and  treated  it  as  a  part  of  the  ordinary 
business  of  the  voyage. 

If  therefore  this  court,  under  the  7th  exception  could  decide 
the  facts  as  well  as  the  law,  in  these  four  alleged  instances  of 


OF  MARYLAND.  65 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

misconduct,  yet  the  testimony  in  every  one  of  them  fully  justi- 
fies Pawson,  and  shows  that  he  faithfully  discharged  his  duty: 
The  appellants  fail  in  the  facts,  if  the  court  deem  it  proper  to 
try  the  facts  on  the  evidence. 

But  suppose  we  are  wrong  in  both  of  the  propositions  we 
have  endeavored  to  maintain.  Let  us  assume,  for  the  sake  of 
the  argument,  that  the  objections  are  presented  by  the  record, 
and  that  the  acts  of  misconduct  imputed  to  Pawson  are  sufficient- 
ly established  ;  it  remains  to  inquire,  whether  such  acts  of  mis- 
conduct will  forfeit  all  title  to  the  wages  stipulated  in  the  con- 
tract. 

In  this  aspect  of  the  case,  the  point  to  be  decided  is  this,  an 
agent  has  faithfully  and  diligently  performed  his  duty  to  his 
principal,  according  to  the  best  of  his  judgment.  Nothing  is 
done,  or  omitted  to  be  done  in  bad  faith.  The  services  have 
been  rendered  by  the  agent  and  accepted  by  the  principal,  and 
a  large  profit  reaped  from  them.  Yet  the  agent  is  supposed,  in 
some  particular  instance,  to  have  mistaken  the  precise  line  of 
his  duty ;  and  to  have  departed  from  it ;  and,  by  this  departure, 
the  gains  of  his  principal  are  in  a  slight  degree  lessened.  It  is 
said  by  the  appellant,  that  in  such  a  case  this  injury  to  the  prin- 
cipal, however  small,  forfeits  the  wages  of  the  agent,  however 
large.  It  is  even  said  they  are  forfeited,  although  the  owner 
sustain  no  injury.  No  authority  has  been  produced  to  maintain 
either  of  these  propositions,  and  it  is  believed  that  none  can  be 
found. 

The  principal  is  not  without  remedy  in  the  case  supposed, 
provided  he  has  sustained  damage.  The  law  will  not  indeed 
forfeit  the  wages,  by  way  of  penalty  upon  the  agent.  Neither 
can  the  principal,  technically  speaking,  set  off  the  amount  of 
injury  received  by  him,  in  bar  of  the  claim  for  wages.  1 
Peak.  Ev.  (JVoms'  edition,)  416.  Winchester  vs.  Hackley,  2 
Crunch.  Rep.  342.  But  he  may  maintain  an  action  against  the 
agent,  and  recover  damages,  commensurate  with  the  injury  sus- 
tained. And  in  this  suit  Donnell  was  at  liberty  to  have  shewn, 
if  he  could,  that  the  duty  of  supercargo  was  not  performed 
with  fidelity  and  skill,  and  have  thereby  diminished  the  wages 
VOL.  1—9. 


66  CASES  IN  THE  COURT  OP  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  r«.  Pawson's  Admr's. — 1829. 

to  be  recovered,  in  proportion  to  the  injury  he  had  sustained. 
And  he  might  have  defeated  the  claim  altogether,  if  it  had  ap- 
peared to  the  jury,  upon  the  evidence,  that  Pawson  had  per- 
formed the  trust  so  negligently,  unskilfully,  or  unfaithfully,  that 
he  was  not  entitled  to  demand  compensation.  1  Com.  on  Cont. 
226,  227,  (edition  of  1809;)  2  Stark.  Ev.  642,  644,  (note.) 
Farnsicorlh  vs.  Garrard,  I  Camp.  38.  But  Donnell  does  not 
rely  on  this  defence.  The  record  presents  no  question  on  these 
points.  Donnell  insists  that  there  has  been  a  technical  viola- 
tion of  duty  by  Pawson,  and  that  the  law  visits  it  with  the  total 
forfeiture  of  his  wages.  And,  after  having  received  the  benefit 
of  the  services,  he  now  claims  the  benefit  of  the  forfeiture. 
The  claim  is  not  founded  in  justice,  nor  is  it  supported  by 
authority. 

If  therefore  the  points  raised  were  presented  by  the  record, 
and  the  imputed  acts  of  misconduct  could  be  proved,  still  all 
right  to  the  wages  would  not  be  forfeited,  and  consequently  the 
prayer,  contained  in  the  3d  and  7th  exceptions,  ought  not  to 
have  been  granted.  We  have  already  shewn  that  the  8th  ex- 
ception presents  a  different  question,  and  have  offered  argu- 
ment upon  it 

2.  We  proceed  to  the  second  objection,  in  relation  to  the 
$2,000.  It  is  said  that  the  performance  of  the  whole  service 
is  a  condition  precedent  to  the  recovery  of  any  part  of  the 
compensation ;  and  that,  as  Pawson  died  before  the  service  was 
completed,  his  administrators  can  recover  nothing  for  the  servi- 
ces actually  rendered. 

This  point  is  presented  in  the  5th  exception,  and  in  none 
other. 

It  is  very  clear  that  the  court  was  right  in  refusing  to  give 
the  direction  prayed  for.  The  appellant  called  on  the  court  to 
decide,  what  is  obviously  a  question  of  fact,  and  a  disputed 
question  of  fact.  The  prayer,  after  stating  the  services  for 
which  the  above  mentioned  sum  was  supposed  to  be  compensa- 
tion, proceeds  thus : — "  that  the  voyage  having  been  altered  by 
the  consent  of  parties,  (as  appears  by  the  said  correspondence,)  by 
striking  out  that  part  of  it  which  related  to  the  trip  to  Canton, 


OF  MARYLAND.  67 


Pawson's  Adm'rs  us.  Donnell.     Donnell  vs.  Pawsori's  Adm'rs — 1829. 

and  directing  the  destination  of  the  ship  from  Coquimbo  to  Bal- 
timore, without  saying  any  thing  of  the  aforesaid  compensation 
to  Pawson  as  supercargo,  that  stipulation  attached  to  the  new 
voyage  precisely  in  the  same  manner,  in  which  it  had  attached 
to  theoriginal  voyage,"  &c.  &c.  This  quotation  is  made  from 
the  prayer,  in  order  to  shew  that  the  stipulation  is  supposed  to 
attach  on  the  new  voyage,  as  it  has  done  to  the  old,  by  reason  of 
the  agreement  to  substitute  the  new  voyage  for  the  old  one. 
The  agreement  then  to  alter  the  voyage  is  the  foundation  on 
which  the  prayer  is  placed  by  the  appellant.  It  can  be  sup- 
ported on  none  other.  And  he  calls  upon  the  court  to  say,  not 
only  that  the  agreement  had  been  "altered  by  the  consent  of 
the  parties,"  but  also  that  this  alteration  "  appears  by  the  cor- 
respondence." In  other  words  he  assumes,  that  the  correspon- 
dence being  in  writing,  it  is  the  province  of  the  court  to  say, 
whether  the  consent  of  Pawson  to  the  alteration  in  the  voyage 
is  to  be  inferred  from  it  or  not.  We  deny  that  it  is  within  the 
province  of  the  court  to  decide  this  question.  One  of  the  facts 
in  controversy  between  the  parties,  as  appears  by  the  record,  is 
whether  Pawson  did  or  did  not  consent  to  this  alteration.  The 
appellant  says  he  did  assent,  and  thereby  waived  the  old  agree- 
ment and  made  a  new  one.  The  appellees,  on  the  contrary,  in- 
sist that  he  merely  obeyed  the  orders  of  his  owner;  that  it  was 
his  duty  to  obey,  and  being  his  duty,  his  assent  to  the  change 
cannot  be  inferred  from  the  fact  that  he  performed  the  new 
voyage  cheerfully,  and  without  objection.  And  they  maintain 
therefore,  that  the  original  contract  was  never  waived  by  Paw- 
son,  and  the  rights  of  the  parties  must  still  be  decided  by  this 
agreement. 

In  this  state  of  the  controversy,  can  the  court  undertake  to 
decide  the  question,  whether  Pawson  did  or  did  not  consent  to 
the  alteration?  Is  it  not  a  question  of  fact?  It  does  not  de- 
pend upon  the  construction  of  any  particular  paper,  but  de- 
pends upon  inferences  to  be  drawn  from  the  whole  correspon- 
dence, and  the  acts  of  the  parties  taken  together.  It  is  there- 
fore a  question  for  the  jury.  Etting  vs.  Sank  of  United  States, 
}  1  Wheat.  75, 76,  is  in  point. 


68  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

If  we  are  right  in  these  views,  the  judgment  of  the  County 
Court  upon  this  exception  must  he  allinned. 

But  let  us  waive  this  objection  and  examine  the  point  of  law 
proposed  to  be  raised  by  the  appellant,  under  this  exception. 

The  ship  sailed  from  Baltimore  Nov.  1 9, 181 9.  She  return- 
ed October  21,  1821,  having  been  absent  nearly  two  years. 
Pawson  died  December  4,  1820,  having  been  actively  and  la- 
boriously engaged  in  the  service  of  Donncll  for  more  than  a 
year.  At  the  time  of  his  death  he  had  nearly  completed  the 
duties  of  his  agency,  and  had,  by  his  faithful  services,  insured 
to  Donnell  a  gainful  voyage.  Donnell  accepts  all  the  benefits, 
which  the  labours  and  services  of  Pawson  had  procured  for 
him;  but  contends  that  Pawson  is  entitled  to  no  compensation 
for  these  services,  because  he  died  before  the  duties  of  the 
agency  were  entirely  completed.  According  to  this  principle, 
if  only  a  single  hour's  work  remained  to  be  done  when  Pawson 
died,  his  representatives  would  be  entitled  to  nothing  for  his 
services,  even  although  these  services  had  occupied  many  years 
of  his  life,  and  had  enriched  the  appellant.  Is  this  the  law  ? 
The  principles  of  moral  justice  are  opposed  to  it;  and  it  can- 
not, we  think,  be  supported  by  the  authority  of  adjudged 
cases. 

The  cases  upon  this  point  are  collected  together,  and  the  rule 
laid  down  in  Portage  vs.  Cole,  I  Saund.  320,  (note  4,)  as  relates 
to  sealed  instruments. 

The  conclusion  from  all  the  cases  is  stated  as  follows: 
"  Hence,"  (says  Sergeant  Williams,)  "  it  appears  that  the  rea- 
son of  the  decision  in  these  and  other  similar  cases,  besides  the 
inequality  of  the  damages,  seems  to  be,  that  when  a  person  has 
received  a  part  of  the  consideration  for  which  he  entered  into 
the  agreement,  it  would  be  unjust  that,  because  he  has  not  had 
the  whole,  he  should  therefore  be  permitted  to  enjoy  that  part, 
without  either  paying  or  doing  any  thing  for  it.  Therefore  the 
law  obliges  him  to  perform  the  agreement  on  his  part,  and 
leaves  him  to  his  remedy  to  recover  any  damage  he  may  have 
sustained,  in  not  having  received  the  whole  consideration." 


OF  MARYLAND.  69 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs 1829. 

The  same  principle  applies  to  contracts,  not  under  seal,  with 
this  difference  that  the  defendant  is  not  put  to  his  cross  action, 
as  in  cases  of  covenant.  But  if  the  contract  has  not  heen  fully 
performed  by  the  plaintiff,  the  defendant  may  show  it,  and  the 
plaintiff  will  be  allowed  to  recover  to  the  extent  of  the  benefit 
derived  by  the  defendant,  and  no  further.  2  Stark.  Ev.  643, 
644,  and  (note  w.)  The  doctrine  is  so  clearly  laid  down  in  this 
authority,  that  we  must  beg  leave  to  ask  for  it  the  particular 
attention  of  the  court.  For  in  strictness,  &c.  "But  still," 
(says  Starkie,  in  page  643)  "  if  the  defendant  be  benefitted  to 
a  certain  extent,  and  does  not  repudiate  the  contract  in  toto,  it 
seems  to  be  a  rule  of  policy  and  convenience,  as  well  as  of 
equity  and  justice,  that  the  plaintiff  should  be  allowed  to  reco- 
ver to  the  extent  of  the  benefit  derived  by  the  defendant,  and 
no  further." 

Whatever  therefore,  may  have  been  the  ancient  decisions 
upon  this  subject,  it  has  for  many  years  been  settled  in  the 
English  courts,  that  in  ordinary  contracts,  with  or  without  seal, 
the  defendant  according  to  the  principles  of  the  common  law 
is  liable,  in  proportion  to  the  benefit  derived  from  the  contract, 
although  he  may  not  have  received  the  whole  consideration  for 
which  he  stipulated ;  provided  the  plaintiff  is  not  in  fault,  and 
does  not  possess  the  power  to  perform  the  whole  stipulation. 
This  is  the  general  rule  applicable  to  contracts.  It  is  however 
admitted  that  if,  from  the  words  of  the  contract,  it  appears  that 
the  parties  intended  that  the  entire  performance  should  be  a 
condition  precedent  to  the  payment  of  any  part  of  the  compen- 
sation, then  such  condition,  like  every  other  condition  prece- 
dent, must  be  strictly  and  entirely  performed.  For  the  parties 
have  a  right  to  contract  as  they  please.  But  in  order  to  pro- 
duce this  result,  it  must  clearly  appear  from  the  words  of  the 
contract,  that  such  was  the  intention  of  the  parties ;  and  such 
was  the  case  of  Cutter  vs.  Poivell.  The  same  principle  pre- 
vails in  commercial  contracts. 

If  a  seaman  is  prevented  by  a  superior  power  from  perform- 
ing the  service  he  contracted  to  perform,  he  is  entitled  to  a 
proportional  part  of  his  wages ;  as  in  the  case  of  sickness  or 


70  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  rs.  Pawson'a  Adm'rs. — 1829. 

death  of  the  mariner;  and  also  in  the  case  of  impressment. 
Mb.  on  Ship.  426,  (and  note  1,)  427,  (and  note  1,)  433,  (and 
note  1.)  In  these  passages  in  Jlbbot,  the  doctrine  is  summed 
up,  and  the  leading  authorities  referred  to.  And  the  cases 
given  in  the  last  mentioned  page,  geem  to  be  conclusive  on  this 
point.  The  same  principle  is  fully  supported  by  the  following 
authorities : — Hart  vs.  Ship  Liltkjohn,  1  Peters  Jldm.  Rep.  1 1 5  to 
121.  Johnson  vs.  Sims,  Ib.  215,  Poth.  Marit.  Cont.  Placita, 
179  to  193. 

If  it  be  said  that  contracts  for  personal  service  stand  on 
different  grounds  from  other  contracts,  and  that  the  perform- 
ance of  the  whole  personal  service  stipulated  is  a  condition 
precedent  to  the  payment  of  any  part  of  the  stipulated  reward, 
for  which  the  service  is  the  consideration,  the  answer  is  that  no 
good  reason  can  be  given  in  support  of  such  a  distinction. 
Neither  do  the  authorities  sanction  it,  for  the  cases  of  maritime 
contracts  above  quoted,  were  cases  of  contracts  for  personal 
service.  Many  of  the  cases  upon  the  subject  of  hiring  by  the 
year  relate  to  the  time  when  the  wages  may  be  demanded — the 
time  when  they  become  payable.  If  they  were  to  be  paid  at 
the  end  of  the  year,  they  cannot  be  demanded  before.  The, 
King  vs.  Inhabitants  of  Whittkbury,  6  T.  R.  467.  3  Stark. 
Ev.  1766. 

And  in  the  case  of  Cutter  rs.  Powell,  so  often  referred  to,  it 
is  distinctly  admitted  in  the  argument  of  the  counsel  for  the  de- 
fendant, and  sanctioned  by  the  court,  that  in  the  common  case 
of  a  hired  servant  who  contracts  by  the  year,  and  dies  in  the 
middle  of  it,  his  executors  may  recover  a  part  of  his  wages,  in 
proportion  to  the  time  of  service. 

The  case  mainly  relied  on  by  the  appellant,  is  the  case  of 
Cutter  vs.  Powell,  6  T.  R.  320. 

This  case  was  manifestly  not  decided  upon  any  general  rule 
of  law  applicable  to  contracts  for  service,  but  was  decided 
upon  the  special  terms  of  that  particular  contract.  The  Judges 
say  so  in  delivering  their  opinion,  and  the  unusually  high  rate  of 
the  wages  is  greatly  relied  on  by  two  of  the  Judges,  for  the 
purpose  of  proving  that  the  wages  were  to  be  contingent  and 


OF  MARYLAND.  71 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

hot  certain.  There  is  no  circumstance  like  that  in  the  present 
case.  In  Mb.  on  Ship.  429,  in  speaking  of  the  case  of  Cutter 
vs.  Powell,  it  is  said  to  have  been  decided  "  upon  consideration 
of  the  particular  terms  of  the  note,  and  of  the  great  excess  of 
the  sum  to  be  paid  to  Cutter,  if  he  had  performed  the  whole 
voyage  according  to  those  terms,  above  the  usual  rate  of  wages 
upon  a  monthly  hiring." 

The  case  of  Countess  of  Plymouth  vs.  Throgmorton,  Salk. 
65,  referred  to  by  Lawrence,  Justice,  in  his  opinion  in  the  case 
of  Cutter  vs.  Powell,  might  be  sufficiently  answered  by  saying, 
that  if  it  be  contrary  to  the  cases  above  referred  to,  it  is  then 
overruled  by  them.  In  note  (a,)  page  323,  of  Cutter  vs.  Powell, 
it  is  said  that  the  ancient  law  was  different  from  what  the 
modern  is  in  that  case  conceded  to  be. 

But  a  further  sufficient  answer  may  be  given.  The  case  of 
Countess  of  Plymouth  vs.  Throgmorton,  does  not  justify  the  ac- 
count given  of  it  by  Justice  Lawrence :  He  says,  in  speaking 
of  this  case,  "  it  was  argued  that  without  a  full  year's  service 
nothing  could  be  due,  for  that  it  was  in  the  nature  of  a  condi- 
tion precedent-,  that  it  being  one  consideration  and  one  debt,  it 
could  not  be  divided;  and  this  court  were  of  that  opinion,  and 
reversed  the  judgment" 

Now  it  does  appear,  it  is  true,  that  the  argument  above 
stated  was  offered  by  Sergeant  Holt,  who  was  counsel  in  the 
case.  But  it  does  not  appear  that  "the  court  were  of  that 
opinion,"  as  is  stated  by  Justice  Lawrence.  The  report  in 
Salkeld  does  not  say  so.  For  after  giving  the  argument  of 
counsel  it  says,  "judgment  reversed,"  and  does  not  profess  to 
give  the  grounds  upon  which  the  court  decided.  The  doc- 
trines maintained  by  the  counsel  in  argument  are  not  ascribed1 
to  the  court,  by  the  reporter.  The  full  copy  of  the  record  of 
this  case  will  be  found  in  3  Salk.  784 ;  and  it  is  apparent  upon 
looking  at  it,  that  the  declaration  could  not  be  supported,  and 
.that  the  judgment  in  the  court  below  ought  to  have  been  re- 
versed on  the  pleadings.  The  declaration  states  the  contract 
in  substance  to  have  been,  "  that  the  earl  of  Plymouth  authoriz- 
ed Edward  Picke  to  demand  and  receive  all  sums  of  money  th«n 


72  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  cs.  Donncll.     Donnell  rs.  Pawson's  Adm'rs. — 

due  to  the  earl  of  Plymouth,  or  that  should  become  due  in  the 
next  three  years,  and  to  apply  the  same  as  the  earl  of  Plymouth 
should  by  writing  direct;  and  for  his  care  and  labour  in  the 
premises,  the  said  earl  engaged  to  pay  him  a  hundred  pounds  a 
year  for  three  years.  The  declaration  then  avers,  that  the  said 
Edward  afterwards,  for  the  space  of  three  quarters  of  a  year 
from  thence  next  following,  from  time  to  time,  "  solicited  and 
requested  divers  persons  the  debtors  to  tlie  said  earl,  to  pay  sundry 
sums  of  money  at  that  time  due  and  payable  to  tJie  said  ear/,"  fyc. 
4^c.  Now,  it  will  hardly  be  contended  that  this  is  a  good  aver- 
ment, that  the  service  stipulated  was  performed  for  any  space 
of  time.  The  duty  averred  to  have  been  for  three  quarters  of 
a  year,  is  not  the  service  contracted  to  be  done;  and  there  is  in 
this  declaration  no  good  and  legal  averment  of  performance  of 
the  service .  contracted  for,  even  for  a  single  day.  The  case 
therefore  must  have  been  reversed  on  this  ground;  and  it  cer- 
tainly does  not  appear  that  the  court  decided  it  on  the  ground, 
taken  by  counsel  in  the  argument 

These  two  cases  then  can  hardly  be  sufficient  to  outweigh 
the  many  authorities  produced  in  support  of  the  opinion  of  the 
court.  And  it  would  indeed  hardly  be  desired  to  find  authori- 
ties to  support  the  principle  maintained  by  the  appellant.  For 
if  he  be  right,  then  where  a  slave  is  hired  by  the  year,  and  dies 
an  hour  before  the  expiration  of  the  year,  his  master  loses  his 
wages.  So  too  the  family  of  an  overseer  would  lose  the  fruits 
of  his  labour,  if  he  died  an  hour  before  the  expiration  of  the 
year.  And  although  such  contracts  of  hiring  have  been  com- 
mon for  a  long  time  in  this  State,  it  has  never  been  supposed 
that  the  accident  of  sickness  or  death  would  prevent  the  party 
or  his  representatives  from  recovering  for  the  proportion  of  the 
service  actually  rendered.  Yet  according  to  the  doctrine 
maintained  by  the  appellant,  if  by  sickness  or  death  Pawson 
was  prevented  from  performing  the  most  trifling  proportion  of 
his  duty,  he  was  entitled  to  nothing ;  the  contract  being  an  entire 
compensation  for  an  entire  service}  and  not  subject  to  appor- 
tionment. There  is  surely  nothing  like  justice  in  the  rule  to 
recommend  it  to  the  favour  of  the  court. 


OF  MARYLAND.  73 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

It  has  been  also  insisted  on  the  part  of  the  appellant,  that 
the  expressions  in  DonnelVs  letter,  that  the  $2000  were  to  be 
payable  on  Pawson's  return,  make  his  return  a  condition  prece- 
dent, and  that  the  right  to  the  wages  depends  on  the  happening 
of  this  contingency. 

In  reply  to  this  argument,  it  is  sufficient  to  refer  to  1  Pow.  on 
Cont.  267,  268.  Mb.  on  Ship.  433,  434,  (note  1 .)  .  The  words 
in  DonnelVs  letter  do  not  create  a  condition;  they  are  modal 
only;  and  relate  to  the  manner  in  which  the  contract  shall  be 
performed. 

Assuming  then  that  Pawson  had  not  by  misconduct  on  his 
part  forfeited  all  claim  to  wages  as  supercargo ;  and  that  the 
compensation  agreed  upon  is  subject  to  apportionment ;  the  only 
remaining  question,  in  relation  to  this  part  of  the  subject  is, 
whether  the  County  Court  have  given  the  true  rule. 

This  question  is  brought  up  by  the  4th  exception,  and  can 
arise  under  none  other.  The  rule  of  apportionment  is  given  in 
the  opinion  of  the  court,  and  according  to  that  rule  it  is  to  be 
graduated  by  the  time  Pawson  was  actually  in  service  ;  and  the 
opinion  assumes  that  the  duty  of  supercargo  commenced  with  the 
voyage,  and  terminated  on  the  signature  of  the  bill  of  lading. 

We  do  not  know  that  the  court  are  supposed  to  have  erred  in 
fixing  the  commencement  of  the  voyage  as  the  time  when  the 
service  commenced.  Pawson,  it  is  true,  was  both  captain  and 
supercargo,  yet  in  estimating  his  wages  as  supercargo,  we  can- 
not take  into  consideration  that  he  was  captain.  He  must  be 
dealt  with  as  if  a  different  person  had  been  captain,  and  he  no- 
thing but  supercargo.  And  if  that  had  been  the  case,  it  would 
be  too  obvious  for  argument,  that  his  service  began  when  the 
ship  sailed  from  Baltimore.  2  Liv.  on  Agency,  215. 

But  although  the  time  when  the  service  commenced  is  not 
questioned,  yet  the  time  when  it  terminated  is  disputed,  and  it  is 
said  the  court  have  erred  in  the  time  mentioned  in  their  direc- 
tion. 

If  the  court  have  erred  in  this  respect,  the  appellant  has  no 
right  to  complain  of  it.    For  in  his  prayer,  he  assumes,  that  the 
duty  of  supercargo  terminated  when  he  had  completed  the  in- 
VOL.  I— 10. 


7t  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs — 1829. 

vestment  of  the  appellant's  funds.  The  court  consider  it  as  ter- 
minating upon  tin-  signature  of  the  bill  of  lading  for  the  home- 
ward voyage ;  and  this  must  necessarily  happen  after  the  in- 
vestment of  the  funds  in  the  homeward  cargo.  The  court  there- 
fore, have  in  their  direction,  made  the  portion  of  time  lost  by 
the  death  of  Pawson,  to  be  greater  than  the  defendant  asked  for ; 
and  have  given,  in  this  respect,  to  the  appellant  more  than  he 
demanded.  He,  therefore,  cannot  allege  error  in  that  part  of 
the  opinion. 

But  if  we  put  aside  this  answer,  which  is  believed  to  be 
quite  sufficient  on  this  subject,  yet  it  can  easily  be  proved  by 
authority,  that  the  court  have  not  erred  in  fixing  the  time  when 
the  service  ended.  For,  in  the  first  place,  the  duties  of  master 
and  of  supercargo  are  known  to  the  law,  and  need  not  be  prov- 
ed as  matters  of  fact.  And  in  the  second  place,  the  goods 
would  have  been  in  the  charge  of  Pawson  as  captain,  and  not 
as  supercargo,  from  the  signature  of  the  bill  of  lading  until  the 
end  of  the  voyage.  These  propositions  are  both  proved  by  the 
following  authorities :  Kendrick  vs.  Delafald,  2  Cam.  Rep.  67, 
72.  United  Insurance  Company  vs.  Scott,  I  John.  Rep.  Ill, 
115.  1  Liv.  on  Jlgen,  69,  72.  2  Liv.  on  Agen.  215.  In  the 
case  of  Kendrick  vs..  Delafald,  the  same  person  was  captain  and 
supercargo,  and  in  that  case,  Kent,  Justice,  says :  "  The  captain 
did  not,  and  could  not  lay  aside  his  character  and  responsibility 
as  master,  until  the  vessel  had  performed  her  voyage,  and  ar- 
rived at  the  port  of  destination."  His  expressions  marking  out 
their  relative  duties,  are  equally  strong  in  the  United  Insurance 
Company  vs.  Scott. 

The  bills  of  lading  are  the  contracts  of  the  master,  as  master, 
that  he  will  carry  the  goods  to  the  port  of  destination.  Mb.  on 
Ship.  217,  218.  See  the  bills  of  lading  in  the  record.  After 
the  bills  of  lading  were  signed,  what  more  had  the  supercargo 
to  do?  It  would  then  have  become  the  duty  of  Pawson,  in  the 
character  of  captain,  to  take  the  goods  to  the  port  of  Baltimore; 
and  during  the  voyage,  and  until  the  arrival  in  port,  the  cargo, 
if  he  had  lived,  would  have  been  in  his  charge  as  captain,  and 
the  supercargo  would  have  had  no  right  to  interfere.  Upon  the 


OF  MARYLAND.  75 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

arrival  of  the  vessel  in  Baltimore,  the  cargo  was  to  be  deliver- 
ed to  Donnell  himself,  or  his  order.  The  supercargo",  there- 
fore, had  nothing  to  do,  and  could  not  lawfully  interfere,  after 
the  bill  of  lading  was  signed.  His  services  ended  at  that  time, 
and  the  court  below  were  right  in  fixing  that  as  the  period,  at 
which  his  duties  terminated. 

It  has  been  said  that  the  authority  of  supercargo  did  not  end 
at  the  time  above  mentioned,  and  that  it  was  his  duty  to  be  on 
board  the  vessel  on  her  homeward  voyage,  because  he  had  the 
power  during  that  voyage  to  alter  the  destination  of  the  cargo. 
The  answer  to  this  argument  is,  that  it  would  have  been  contra- 
ry to  the  orders  of  Donnell  to  have  changed  the  destination  of 
the  ship,  and  take  the  copper  to  any  other  port.  And  the  law 
hardly  makes  it  the  duty  of  a  supercargo  to  be  on  board,  in 
order  that  he  may  have  an  opportunity  of  committing  a  breach 
of  duty.  The  law  will  not  require  his  presence,  unless  he  may 
have  some  duty  to  perform.  If  the  court  were  right  in  fixing 
the  time  of  the  commencement,  and  of  the  termination  of  the 
duty  of  supercargo,  we  do  not  know  that  any  other  error  is  sup- 
posed to  exist  in  the  direction.  The  principle  of  apportionment 
adopted  by  the  court,  is  the  same  with  that  prayed  for  by  the 
appellant.  His  compensation,  as  supercargo,  is  not  measured 
solely  by  the  time  he  was  engaged  in  buying  or  selling  cargo  ; 
but  the  time  occupied  in  getting  to  the  scene  of  action  is  consi- 
dered as  a  part  of  his  time  of  service.  It  is  difficult  to  imagine 
any  other  just  rule  of  apportionment.  For  his  time  and  labour 
were  his  capital,  and  while  he  was  on  his  voyage,  as  supercar- 
go, to  London  or  to  C/w7i,  he  was  incapable  of  engaging  in  any 
other  profitable  occupation.  This  service  so  engrossed  his 
whole  time,  as  to  exclude,  necessarily,  any  other  business.  If 
he  was  in  service,  he  was,  of  course,  earning  wages  during  all 
that  time. 

But  it  seems  to  be  supposed  that  there  ought  to  have  been  a 
deduction  from  the  $2000,  on  account  of  the  alteration  in  the 
voyage,  and  that  the  court  erred  in  refusing  that  part  of  the 
prayer. 


76  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

The  claim  to  this  deduction  is  not  based  upon  the  notion  that 
Pawson  ass'ented  to  the  change,  or  assented  to  any  diminution  of 
wages.  His  agreement  in  this  prayer  is  put  out  of  the  ques- 
tion. And  the  appellant,  in  effect,  contends  that  if  the  voyage 
originally  contemplated,  was  abandoned  by  the  orders  of  Don- 
nell, and  without  the  consent  of  Pawson,  that  the  latter  is  enti- 
tled to  wages  only  in  proportion  to  the  service  actually  render- 
ed, and  not  according  to  the  contract  made  between  the  parties. 

If  this  principle  be  sound,  it  leads  to  this  conclusion,  that  if 
the  ship  had  been  ordered  back  from  England,  and  the  whole 
speculation  given  up,  Pawson  could  have  recovered  in  propor- 
tion only  to  the  duties  actually  performed.  In  other  words,  if 
Pawson  was  prevented  by  Donnell  from  performing  the  service, 
Donnell  is  not  bound  to  make  him  any  compensation.  The 
whole  current  of  authorities  stand  in  opposition  to  this  doctrine. 
Pawson  sails  on  the  voyage  originally  planned,  and  for  which  he 
was  to  receive  for  his  services  as  supercargo,  $2000.  When  he 
is  in  England,  and  after  he  had  put  himself  out  of  the  way  of 
other  employment,  by  proceeding  to  execute  this  contract,  Don- 
nell,  without  consulting  him,  and  in  the  exercise  of  what  was 
no  doubt  his  lawful  power,  orders  the  voyage  to  be  altered.  It 
is  altered  in  obedience  to  his  order.  Pawson  is  ready  to  per- 
form his  engagement,  but  he  is  prevented  by  Donnell.  Is  he 
not  entitled  to  demand  the  pay  when  he  is  ready  to  perform  the 
service  ?  Donnell  does  not  appear  at  that  time  to  have  enter- 
tained the  notion  that  the  wages  were  to  be  cut  down,  because 
the  voyage  was  altered.  He  does  not  suggest  it  in  his  letter  to 
Pawson,  and  their  is  nothing  either  in  his  letter  or  in  that  of 
Pawson  in  reply,  from  which  it  can  be  inferred  that  either  party 
looked  to  any  change  in  the  wages  agreed  on  before.  On  the 
contrary  we  think  that  the  jury  might  and  ought  to  have  infer- 
red, from  the  silence  of  both  parties  on  the  subject,  that  both  of 
them  understood  and  agreed  that  the  compensation  as  it  stood 
in  tho  original  contract  was  to  remain  unchanged.  And  if  the 
jury  might  possibly  have  so  inferred  from  the  testimony,  then 
the  absolute  direction  asked  for  ought  not  to  have  been  given. 


OF  MARYLAND.  77 


Pawson's  Adm'rst>s.  Donnell.     Donnell  vs.  Pawson's  Adm'rs 1829. 

But  putting  aside  any  supposed  understanding  between  the 
parties,  we  come  to  the  question  of  law  proposed  to  be  raised 
on  this  exception.     And  we  maintain,  that  inasmuch  as  Paicson 
was  ready  and  willing  to  have  performed  the  service  originally 
agreed  on,  and  was  prevented  from  doing  so  by  the  orders  of 
Donnelly  he  is  entitled  to  recover  from  Donnell  the  whole  com- 
pensation originally  contracted  to  be  given.  This  principle,  how- 
ever, is  involved  in  the  questions  relating  to  the  Canton  privilege. 
Third  Point. — Are  the  administrators  of  Pawson  entitled  to 
recover  compensation  for  the  privilege  of  twenty-five  tons, 
from  Canton  to  Baltimore,  stipulated  in  DonneWs  letter  of 
November  18,  1819,  and  of  which  Pawson  was  deprived 
by  the  act  of  Donnell,  in  changing  the  voyage  originally 
contemplated  ? 

The  only  remaining  subject  of  controversy  between  the  par- 
ties is  the  privilege  of  twenty-five  tons  from  Canton  to  Balti- 
more, stipulated  in  DonnelPs  letter  of  November  18,  1819. 
The  questions  on  this  part  of  the  dispute  arise  out  of  the  2d, 
6th  and  9th  exceptions.  The  points  presented  by  the  other 
exceptions  have  been  already  disposed  of. 

In  the  second  exception,  as  in  some  of  the  others  hereinbefore 
examined,  it  will  be  found  that  the  appellant  called  on  the 
court  to  decide  a  question  which  properly  belonged  to  the  jury  ; 
and  that  the  court  were  on  that  account  right  in  refusing  the 
prayer,  if  it  had  even  been  open  to  no  other  objection. 

In  this  exception,  the  appellant  in  his  prayer  in  the  first  place 
assumes  as  a  fact,  that  the  voyage  Kad  been  "  altered  by  the 
direction  of  the  defendant  and  the  cpnsent  of  Captain  Paicson," 
and  prays  the  court  to  instruct  the  jury  that  "the  privilege  stip- 
ulated for  Captain  Pawson  to  bring  home  twenty-five  tons  from 
Canton,  clear  of  freight,  was  voluntarily  relinquished  by  him, 
and  exchanged  for  the  privilege  of  bringing  home  his  funds  in 
copper  from  Coquimbo." 

Now  there  is  no  paper  by  which  Pawson  is  supposed  to  have 
relinquished  his  privilege  to  Canton,  and  exchanged  it  for  a 
privilege  to  bring  copper  from  Coquimbo.  There  is  no  paper 
the  words  of  which  are  supposed  to  imply  such  relinquishment 


78  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Dunncll.     Donnell  vs.  Pawson's  Adra'rs. — 1829. 

or  exchange.  The  relinquishment  and  exchange  is  inferred  in 
the  argument,  from  the  correspondence  and  the  acts  of  the 
parlies.  If  he  has  relinquished  and  exchanged  in  the  manner 
supposed,  he  has  not  done  it  in  writing.  It  is  not  contended  that 
it  is  done  in  any  one  of  the  letters  or  papers  contained  in  the 
record.  And  if  it  is  supposed  to  be  a  parol  relinquishment  and 
exchange,  to  be  inferred  from  the  whole  correspondence  and 
the  acts  of  the  parties  taken  together,  then  surely  the  question, 
whether  there  was  such  a  parol  relinquishment  and  exchange, 
must  be  for  the  jury  and  not  for  the  court.  Laidlaw  vs.  Organ, 
2  Wlieat.  183.  Ettingvs.  Bank  of  tJie  United  Slates,  11  Wheat. 
75.  Both  of  these  cases  are  believed  to  be  fully  in  point,  and 
to  show  that  the  court  were  right  in  refusing  the  prayer  made 
by  the  appellant. 

The  two  cases,  relied  upon  by  the  appellant  to  prove  that 
this  is  a  question  for  the  court,  will  be  found  to  be  distinguish- 
able from  the  case  before  the  court,  and  the  cases  in  Wheaton. 
In  Macheath  vs.  Haldimand,  I  T.  R.  172,  180,  the  question 
was,  whether  the  party  who  purchased  for  the  government  had 
made  himself  personally  answerable.  And  this  depended  on 
the  words  of  his  written  contracts;  that  is,  on  his  letters, 
orders,  &c.  It  was  a  question  upon  the  interpretation  of  the 
written  words,  and  therefore  belonged  to  the  court. 

In  Ferris  vs.  Walsh,  5  Harr.  fy  Johns.  308,  it  was  also  a 
question  upon  the  construction  of  the  written  instruments  taken 
together :  did  the  written  words  amount  to  a  guaranty  ?  Was 
such  the  true  meaning  and  construction  of  the  words  in  the  in- 
struments of  writing?  These  questions  without  doubt  be. 
longed  to  the  court,  whose  office  it  is  to  expound  written  in- 
struments. 

But  the  question  here  is  a  different  one.  It  is  not  a  question, 
what  is  the  true  meaning  and  construction  of  any  or  all  of  the 
letters.  It  is  an  attempt  to  infer  from  the  correspondence  a 
waiver  and  exchange,  which  the  words  of  the  letters  do  not 
imply.  It  is  an  attempt  to  infer  another  fact  from  the  facts 
proved.  The  case  of  Etting  vs.  Bank  of  the  United  States,  1 1 
Wheat.  75,  is  precisely  like  it 


OF  MARYLAND. 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs. — 1829. 

If  indeed  Pawson  had  voluntarily  relinquished  the  Canton 
privilege,  or  exchanged  it  for  one  from  Coquimbo,  nobody 
would  contend  that  he  was  entitled  to  damages  for  the  loss  of  a 
privilege  which  he  had  thus  voluntarily  released,  or  had  ex- 
changed for  another.  But  we  insist  that  he  neither  relinquished 
nor  exchanged  it.  The  appellant  replies  to  us,  that  the  voyage 
was  altered  by  the  consent  of  Pawson,  and  that  by  such  con- 
sent did  he  relinquish  the  privilege  from  Canton,  and  exchange 
it  for  one  from  Coquimbo.  To  this  we  answer,  1st,  that 
whether  Pawson  did  or  did  not  consent  to  the  alteration  is 
surely  a  matter  of  fact,  and  not  a  matter  of  law,  and  the  court 
cannot  assume  the  fact.  He  might  have  written  and  acted  in 
the  manner  he  did  write  and  act,  because  he  supposed  he  was 
bound  to  obey  the  owner  and  had  no  right  to  refuse.  And  he 
was  undoubtedly  bound  to  obey;  and  his  obedience  to  the 
orders  of  Donnell  cannot  therefore  be  evidence  of  a  waiver  of 
his  rights.  At  all  events,  his  obedience  is  not  conclusive  evi- 
dence of  such  waiver,  as  is  assumed  by  the  appellant  in  this 
prayer.  In  the  second  place,  if  the  consent  of  Pawson  was 
admitted,  it  does  not  follow  as  a  conclusion  of  law,  that  by 
such  consent  he  relinquished  the  privilege  from  Canton,  and 
exchanged  it  for  a  privilege  from  Coquimbo.  The  jury  might 
indeed  infer  such  relinquishment  and  exchange,  from  the  fact 
of  consent,  but  it  would  be  an  inference  of  fact  and  not  of  law. 
It  would  be  a  matter  for  the  jury  to  decide,  and  not  for  the 
court.  For  the  consent  to  the  alteration  might  be  given,  reserv- 
ing the  right  to  demand  compensation/on  account  of  the  Canton 
privilege.  The  consent,  and  the  right  to  compensation  for  the 
privilege  might  exist  together.  They  are  not  inconsistent  with 
one  another.  The  relinquishment  and  exchange  of  the  Canton 
privilege  could  not  therefore  be  the  legal  consequence  of  Paw- 
son's  consent  to  alter  the  voyage.  And  upon  either  of  the 
grounds  above  mentioned  the  court  were  right  in  refusing  the 
prayer  contained  in  this  exception. 

After  refusing  the  prayer  made  by  the  appellant,  the  court 
proceeded  to  instruct  the  jury  in  the  manner  bet  forth  in  the 


80  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adra'rs. — 1829. 

same  exception.  The  propriety  of  that  instruction  remains  -to 
be  examined. 

In  this  direction  the  court  leave  it  to  the  jury  to  say,  whether 
Paicson  did  or  did  not  waive  the  benefit  of  the  privilege  from 
Canton.  We  have  already  endeavoured  to  show  that  the  ques- 
tion, whether  he  did  or  did  not  waive  it  was  a  question  of  fact 
for  the  jury,  and  not  a  question  of  law  for  the  court  It  is  un- 
necessary to  repeat  the  arguments  already  offered  on  this  head. 
We  think  we  may  safely  conclude  that  the  appellant  was  wrong 
in  treating  it  as  a  matter  of  law,  and  the  court  right  in  dealing 
with  it  as  a  matter  of  fact. 

But  the  court  have  gone  further  in  their  direction,  and  they 
say  that  if  Paicson  did  waive  the  privilege  from  Canton,  yet 
unless  he  did  so  with  a  knowledge  of  his  legal  rights,  he  is  still 
entitled  to  recover  an  equivalent  for  the  privilege  lost.  It  is 
said  by  the  appellant  that  no  one  can  avail  himself  of  the  plea 
•  of  ignorance  of  the  law,  and  that  if  Pawson  waived  his  privi- 
lege he  is  bound  by  it,  and  cannot  allege  that  he  did  it  under  a 
mistake  as  to  the  law.  The  case  of  Lammot  vs.  Bowly,  6  Harr. 
fy  Johns.  500,  is  a  complete  answer  to  this  objection,  and  so 
fully  sustains  the  opinion  of  the  court  that  it  supersedes  all  ar- 
gument, and  saves  us  the  necessity  of  producing  and  examining 
the  mass  of  authorities  on  this  subject.  In  that  case,  the  court 
lay  down  the  rule  in  the  following  words:  "  It  is  not  intended  to 
say  that  the  plea  of  ignorantia  juris  would  in  all  instances  be 
available  in  civil  cases,  (in  criminal  it  never  can  be,)  because 
some  legal  propositions  are  so  plain  and  familiar  even  to  ordina- 
ry minds,  that  it  would  be  doing  violence  to  probability  to  impute 
ignorance  in  such  cases ;  but  it  is  only  meant  to  say,  that  where 
the  legal  principle  is  confessedly  doubtful,  and  one  about  which 
ignorance  may  well  be  supposed  to  exist,  a  person  acting  under 
a  misapprehension  of  the  law,  in  such  a  case,  shall  not  forfeit 
any  of  his  legal  rights  by  reason  of  such  mistake." 

The  9th  exception  is  immediately  connected  with  this  sub- 
ject, and  the  proposition  contained  in  it  appears  to  have  been 
brought  before  the  court,  in  consequence  of  the  opinion  set 
forth  in  the  3d  exception. 


OF  MARYLAND.  8l 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

In  the  prayer  in  the  9th  exception,  the  court  are  called  upon 
to  assume  that  Pawson  "  consented  to  the  change  of  the  original 
voyage"  and  "waived  his  privilege  from  Canton."  Now  it  was 
not  admitted,  as  we  have  already  shewn,  that  Pawson  consent- 
ed to  the  change  of  the  original  voyage ;  and  it  was  not  admit* 
ted  that  he  waived  his  privilege  from  Canton.  Both  of  these 
matters  were  matters  of  fact,  and  both  of  them  were  in  contra* 
versy  between  the  parties.  And  the  court  were  right  in  refus* 
ing  the  prayer  upon  this  ground,  even  if  there  had  been  no 
other  objection  to  it, 

But  if  these  questions  of  fact  had,  by  the  prayer,  been  left  to 
the  jury,  still  there  would  have  been  no  error  in  this  opinion  of 
the  court,  and  it  was  properly  left  to  the  jury  to  say  whether, 
if  Pawson  had  consented  to  the  change  of  the  voyage,  and  had 
waived  his  privilege  to  Canton,  he  had  done  so  in  ignorance  of 
his  legal  rights.  For  the  privilege  from  Canton  is  proved  to 
have  been  a  much  more  valuable  one,  than  the  privilege  from 
Coquimbo.  Pawson  was  a  sea  captain,  toiling  in  his  profession, 
Donnell  is  proved  by  the  record  to  have  been  a  merchant  of 
great  wealth.  And  it  can  hardly  be  imagined,  that  Pawson 
would  have  exchanged  the  privilege  from  Canton  for  one  of  in- 
ferior value,  unless  he  was  induced  to  do  it  by  the  ignorance  of 
his  legal  rights.  No  other  motive  is  assigned  by  the  appellant, 
and  it  will  scarcely  be  said  that  a  man,  trusted  by  Donnell  with 
the  execution  of  this  great  scheme  of  commercial  adventure, 
could  be  ignorant  of  the  relative  value  of  the  privilege  from 
Canton,  compared  with  a  like  one /from  Coauimbo.  It  is  not 
necessary  however  for  us  to  show,  fhat  there  was  sufficient  evi- 
dence to  prove  his  ignorance  of  the  law.  It  is  enough  for  us, 
that  there  was  evidence  tending  to  prove  it.  "Where  there  is 
any  legal  admissible  evidence  tending  to  prove  the  issue,  the 
effect  of  that  evidence  is  solely  for  the  consideration,  of  the 
jury."  1  Stark.  Ev.  399,  400.  In  the  case  of  Etting  vs.  Bank 
of  the  United  States,  11  Wheat.  50,  the  chief  justice  in  deliver- 
ing the  opinion  of  the  court  says,  "  If  the  testimony  be  examin- 
ed, it  will,  we  think,  appear  that  the  counsel  for  the  plaintiff  has 
not  asked  the  court  to  give  its  opinion  on  any  inferences  of 
fact,  which  it  was  not  at  leaet  possibkfor  tlie  jury  to  draw  from 
VOL.  I— 11. 


82  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  vs.  Pawson's  Adm'rs. — 

the  evidence.  Tlic  knowledge  of  the  Bank  is  not  questioned. 
The  ignorance  of  Etting  migiti  be  inferred  from  the  absence  of  all 
testimony,  proving  his  knowledge  that  any  fraud  had  been  prac- 
tised by  Mr.  «/l/'Cu//o/i."  It  was  surely  possible  for  the  jury, 
from  the  facts  above  referred  to,  and  the  situation  of  the  parties, 
to  infer  that  if  Pawson  had  waived  his  privilege  from  Canton, 
that  he  had  done  it  in  ignorance  of  his  legal  rights.  Indeed  we 
might  safely  call  on  the  jury  to  infer  the  ignorance  of  Pawson, 
from  the  absence  of  all  evidence  proving  his  knowledge.  For 
the  counsel  for  the  appellant  will  not  say  that  the  legal  rights  of 
Pawson  were  plain  and  familiar ;  if  they  were  plain  and  famil- 
iar, there  would  be  no  difference  of  opinion  on  the  subject,  be- 
tween the  County  Court  and  the  learned  counsel  for  Donnell. 
Yet  this  difference  of  opinion  is  manifested  by  the  6th  exception. 
And  on  a  point  of  law,  where  either  the  County  Court  or  the 
learned  counsel  for  the  appellant  are  in  error,  and  that  too 
after  the  most  mature  consideration,  it  would  be  doing  violence  to 
probability,  to  impute  knowledge  to  Pawson.  In  such  a  case,  his 
ignorance  ought  to  be  inferred,  or  at  all  events  might  possibly 
be  inferred  by  the  jury,  from  the  absence  of  all  proof  or  pro- 
bability of  knowledge. 

The  appellant  has  relied  on  Keys  vs.  Parnham,  6  Harr.  $ 
Johns.  418,  and  on  the  case  Davis  vs.  Davis,  7  Harr.  fy  Johns. 
36,  to  shew  that  the  court  may  direct  the  jury  on  the  sufficien- 
cy or  insufficiency  of  evidence  to  establish  a  fact.  The  present 
case  does  not  require  us  to  enter  on  a  full  discussion  of  this 
principle.  There  is  no  question  about  the  sufficiency  of  evi- 
dence presented  by  any  of  the  prayers  in  the  record,  and  this 
court  therefore  are  not  called  on  to  decide  it.  And  besides  we 
are  very  willing  to  leave  it  to  the  court  to  say,  whether  the 
evidence  of  Pawson's  ignorance  of  the  law  is  too  slight  and 
trilling  to  be  left  to  the  jury. 

The  6th  exception  is  the  only  one  which  remains  to  be  exam- 
ined. Was  the  privilege  from  Canton  subject  to  the  two  contin- 
gencies mentioned  in  the  prayer,  and  liable  to  be  lost  upon  the 
happening  of  either  of  them  ?  It  appears  in  the  evidence,  that 
by  the  usage  of  trade,  if  the  captain  died,  the  privilege  in  ques- 


OF  MARYLAND.  83 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

tion,  survived  to  his  representatives,  and  did  not  go  to  the  cap- 
tain who  succeeded  to  the  command  of  the  vessel.  There  is 
no  evidence  of  any  contrary  usage.  The  court  could  not,  in 
opposition  to  such  proved  and  undisputed  usage  of  trade,  say 
that  "  the  death  of  Pawson  at  Coquimbo,  in  the  course  of  that 
voyage,  would  have  put  an  end  to  all  claim  by  his  representa- 
tives on  account  of  this  privilege ;"  and  could  not  therefore  give 
the  direction  prayed  for.  It  has  been  said  in  the  argument,  that 
it  does  not  appear  that  the  privilege  from  Canton  belonged  to 
Pawson  as  Captain,  and  that  it  might  have  belonged  to  him  as 
supercargo.  If  any  doubt  could  be  raised  on  this  subject,  we 
do  not  perceive  that  it  would  materially  affect  the  argument. 
But  the  testimony  puts  it  beyond  doubt,  that  the  privilege  in 
question  was  a  captain's  privilege,  and  not  a  supercargo's.  And 
the  appellant  in  his  prayer  treats  it  as  a  captain's  privilege, 
which  he  supposes  was  contingent  on  the  death  not  of  supercar- 
go Pawson,  but  of  Captain  Pawson.  Neither  should  the  other 
contingency,  mentioned  in  the  prayer,  have  entered  into  the  cal- 
culations of  the  jury.  If  the  ship  had  pursued  the  voyage  ori- 
ginally contemplated,  and  had  been  lost^  Pawson  might  have 
lost  the  benefit  of  his  privilege.  Yet  it  does  not  necessarily 
follow  that  he,  would  even  in  that  case  have  entirely  lost  all  be- 
nefit from  it,  as  is  assumed  in  the  prayer.  But  waiving  any  dis- 
cussion on  that  head,  we  insist  that  as  Pawson  was  prevented 
from  performing  the  voyage  by  the  act  of  Donnell,  the  latter 
takes  upon  himself  all  the  contingencies,  and  cannot  claim  an 
abatement  on  account  of  the  hazards^  to  which  the  contemplated 
adventure  was  subject.  This  is  the  rule  in  the  case  of  seamen's 
wages,  which  are  always  contingent  on  the  safe  arrival  of  the 
vessel.  In  Poth.  Mar.  Cont.  PL  203,  page  125,  126,  it  is  said, 
"  that  if  the  ship  is  voluntarily,  and  of  course  by  the  master's 
act,  unloaded  in  a  place  nearer  than  that  which  is  designated  in 
the  contract  of  affreightment,  the  wages  promised  to  a  sailor 
hired  by  the  voyage  shall  suffer  no  diminution."  In  Hoyt  v?. 
Wildfire,  3  Johns.  Rep.  518,  it  is  said  by  chief  justice  Kent, 
"  that  the  rule  on  this  subject  in  the  English  law,  does  not,  I  ap- 
prehend, differ  from  the  marine  law  of  France,  although  I  have 


84  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  t>«.  Donnell.    Donncll  vs.  Pawson's  Admr's. — 1829. 

not  met  with  any  adjudged  case  in  point,  and  a  recent  nisiprius 
decision,  Eaken  vs.  Thorn,  5  Esp.  JV*.  P.  C.  6,  looks  strongly  the 
other  way."  And  in  Sigard  vs.  Roberts,  3  Esp.  JV.  P.  C.  71 ,  at 
the  conclusion  of  the  case,  Lord  Eldon  says,  "this  clause  (one 
in  the  shipping  articles)  therefore  cannot  prevent  the  sailors 
suing  for  their  wages  when  the  master  discharges  them ;  the 
voyage  tlien  is  ended  as  to  the  man  who  is  discharged  from  the 
ship."  The  same  principle  is  ruled  by  Lord  Elknborough  in 
Gondell  vs.  Ponteguy,  4  Campb.  375. 

**  If  the  plaintiff  was  discharged  (says  Lord  EllenborougJi) 
without  a  sufficient  cause,  I  think  this  action  is  maintainable. 
Having  served  a  part  of  the  quarter,  and  being  willing  to  serve 
the  residue,  in  contemplation  of  law  he  may  be  considered  to 
have  served  the  whole. " 

In  Cook  vs.  Jennings,  7  T.  R.  381,  Lawrence,  J.  in  deliver- 
ing his  opinion  upon  an  action  for  freight,  says,  "but  he  is  not 
entitled  to  the  whole  freight,  unless  he  has  performed  the 
whole  voyage,  except  in  cases  where  the  owner  of  the  goods  pre- 
vents him."  If  then  the  owner  of  the  goods  prevented  the  ship 
owner  from  performing  the  voyage,  the  owner  of  the  goods 
must  pay  the  whole  freight.  There  is  no  deduction  for  hazards 
or  contingencies,  which  might  prevent  the  ship  from  receiving 
freight.  The  case  put  by  Justice  Lawrence  is  in  principle  the 
very  case  under  discussion. 

These  cases  seem  to  establish  firmly  the  proposition,  that 
when  the  party  is  to  be  paid  by  the  voyage,  he  is  entitled  to 
full  wages  if  he  is  prevented  by  the  owner  or  master  from  ren- 
dering the  service.  And  he  is  not  bound  to  abate  any  part  of 
the  stipulated  wages,  on  account  of  the  hazards  of  the  voyage. 
In  this  case  the  privilege  from  Canton  was  a  part  of  the  com- 
pensation, and  was  by  the  voyage,  and  not  by  the  time  of  ser- 
vice. It  is  supposed  by  the  appellant  that  this  part  of  the  com- 
pensation was  liable  to  be  lost,  by  the  destruction  of  the  ship 
on  the  voyage.  If  this  be  the  case,  it  is  strikingly  analogous 
to  the  case  of  seamen's  wages  hired  by  the  voyage,  and  to  the 
ease  of  freight. 


OF  MARYLAND.  85 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

The  following  cases  will  be  found  to  maintain  the  same  doc- 
trines. 

Abb.  on  Ship.  424,  425  (note  1.)  Mahoon  vs.  The  Glo- 
cester,  2  Peters  Adm.  Dec.  403.  Rice  vs.  The  Polly  and  Kitty, 
Ib.  423,  (and  note)  Limland  vs.  Stepfiens,  3  Esp.  N.  Pri. 
Cas.  269.  Valin.  Com.B.  3.  Tit.  4.  Art.  3.  2  Br.  Adm.  533. 
Jacobson's  Sea  Laws,  148.  Napoleon  Com.  Code,  Art.  250. 
Sullivan  vs.  Morgan,  1 1  John.  Rep.  66. 

In  the  case  last  cited,  the  seamen  were  hired  by  the  month, 
and  no  freight  had  been  earned.  Yet  they  received  their  full 
wages  for  the  time  they  had  served,  according  to  the  contract, 
without  any  deduction  on  account  of  the  danger,  that  the  ship 
might  have  been  lost  on  the  voyage  before  freight  was  earned, 
and  consequently  before  wages  were  due.  This  case  is  the 
same  in  principle  with  the  one  at  bar.  In  both  cases  if  the 
ship  had  been  lost  in  the  course  of  the  voyage,  the  compensa- 
tion contracted  to  be  given  would  have  been  lost  also.  And  as 
it  was  held  not  to  'be  subject  to  abatement  on  that  account,  in 
one  instance,  it  is  difficult  to  imagine  why  it  should  be  held 
differently  in  the  other. 

The  case  of  Hulle  vs.  Heightman,  2  East.  145,  turned  upon  the 
form  of  action.  In  the  case  before  the  court  the  agreement  in 
the  beginning  of  the  record  removes  any  difficulty  on  that  score, 
and  permits  us  to  recover  in  this  action  any  thing  that  could  be 
recovered  in  any  other  form.  Besides,  in  the  case  of  Hulle  vs. 
Heightman,  the  time  of  payment  stipulated  in  the  contract  had 
not  arrived,  when  the  suit  was  instituted.  In  that  case,  the  sea- 
men by  an  express  stipulation  were  bound  "  to  assist  in  bringing 
the  ship  back  again,  and  making  her  fast  in  a  proper  place,  be- 
fore they  could  make  any  demand  upon  the  captain  for  the 
wages  due."  And  as  the  homeward  voyage  was  not  abandon- 
ed, but  was  in  the  course  of  execution,  the  time  had  not  arrived 
when  the  wages  would  become  due,  according  to  the  terms  of 
the  contract.  They  could  not  therefore  be  sued  for  as  if  due. 
But  in  this  case  the  original  voyage  had  been  abandoned  by  the 
defendant,  long  before  this  action  was  brought,  and  the  original 
contract  at  an  end.  The  wages  were  as  fully  due,  at  the  time 


86  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs — 1829. 

the  suit  was  commenced,  as  they  would  be  at  any  future  time, 
and  in  this  respect  also  the  case  before  the  court  stands  clear 
of  the  diiliculty,  which  met  the  plaintiff  in  the  case  of  Hullevs. 
JlciglUman.  Indeed  that  case  furnishes  another  proof  of  the 
soundness  of  the  principle  for  which  the  appellees  contend;  for 
it  is  not  suggested  that  the  wages  are  to  abate  on  account  of 
the  hazard,  that  the  vessel  might  be  lost  on  the  homeward 
voyage,  before  she  was  made  fast  in  her  proper  place.  On  the 
contrary,  it  appears  to  have  been  conceded  on  all  hands,  that  if 
the  seamen  were  entitled  to  recover  any  thing  in  that  action, 
they  were  to  recover  according  to  the  sum  stipulated  in  the 
contract.  And  that  no  abatement  was  to  be  made  on  account 
of  any  contingencies  to  which  they  might  have  been  exposed, 
if  they  had  been  allowed  to  go  on  the  voyage  originally  con- 
tracted for. 

In  fine,  the  cases  taken  together  seem  irresistibly  to  lead  to 
the  conclusion,  that  if  the  person  to  whom  the  service  is  to  be 
rendered  prevents  the  performance  of  it,  he  must  pay  as  if  it 
were  done.  In  this  case  Donnell  had  a  right  to  change  the 
voyage-,  he  did  change  it;  and  Pawson  was  bound  to  obey,  and 
he  did  obey.  Donnell,  therefore,  prevented  Pawson  from  per- 
forming the  service,  and  must  pay  as  if  it  had  been  performed. 
The  party  who  is  not  in  fault  is  not  bound  to  give  up  any  part 
of  the  compensation,  contracted  to  be  given.  It  belongs  to 
him  by  the  agreement,  and  the  law  will  not  enable  the  other 
party  to  deprive  him  of  it  without  his  consent. 

Wirt,  for  Donnell. 

The  first  subject  to  which  the  attention  of  the  court  is  invited, 
is  the  claim  for  the  alleged  loss  of  the  privilege  from  Canton, 
which  is  the  subject  of  the  2d,  6th  and  9th  bills  of  exceptions, 
on  the  part  of  the  appellant.  This  is  one  of  those  tilings 
which  it  was  not  supposed  possible  for  human  ingenuity  to  be- 
wilder with  a  moment's  doubt,  until  the  defendants'  second 
prayer  waS  refused,  and  the  instruction  was  given  which  pro- 
duced the  appellant's  6th  and  9th  prayers.  Graham,  the  ad- 
ministrator of  Pawson,  is  obviously  a  man  of  business,  as  ap- 


OF  MARYLAND.  87 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adtn'rs. — 1829. 

pears  by  the  record,  and  it  had  not  entered  into  his  imagination 
to  make  this  claim.  His  letter  to  Donnell  will  be  found  in  the 
record,  and  his  account  stated.  By  his  letter  it  will  be  seen  that 
he  manifestly  considered  the  privilege  from  Coquimbo  as  substi- 
tuted for  that  originally  stipulated  from  Canton  orBatavia;  and 
he  claimed  nothing  more  for  Paicson  than  the  right  to  bring  the 
same  weight,  25,000  Ibs.  from  Coquimbo,  which  he  was  origi- 
nally authorised  to  have  brought  from  Canton  or  Batavia. 
"  You  will  observe,"  says  he,  in  that  letter,  "  that  Captain  Paw- 
son's  privilege  in  the  ship  was  not  taken  by  several  thousand 
pounds  weight;  of  course,  you  will  allow  for  the  deficiency  as 
you  have  done  before."  It  is  not  the  value  of  the  Canton  privi- 
lege in  Canton  goods,  which  he  proposes  to  estimate  and  claim ; 
but  simply  the  weight  which  he  considered  Pawson  authorised 
to  bring  from  Coquimbo,  and  which,  not  having  been  wholly 
brought,  he  claims  an  allowance  for  the  deficiency.  Turn  to 
his  account  on  the  next  page,  and  you  will  perceive  that  there  is 
entered  at  the  foot  of  the  account,  in  the  left  hand  column,  Gra- 
ham's estimate  of  this  deficiency,  to  wit,  f  255  52,  under  the  de- 
scription of  "  loss  of  privilege,"  and  this  thrown  in  among  several 
articles,  by  way  of  make-weight,  after  the  account  had  been  for- 
mally signed  and  closed,  and  consequently  not  presented  as  ar- 
ticles on  which  he  meant  peremptorily  to  insist.  Besides,  if 
Graham,  with  his  knowledge  of  commercial  usage,  had  consi- 
dered the  Canton  privilege  as  a  subsisting  privilege,  he  would 
have  charged  that  privilege  at  its  full  value,  and  we  should  find 
on  the  other  side  a  credit  for  the  freight  of  Pawson's  copper  and 
other  goods  from  Coquimbo.  Thaf  freight  was  the  inevitable 
consequence  of  treating  the  Canton  privilege  as  a  subsisting 
claim ;  for  Captain  Pawson  surely  could  not  have  two  privileges 
subsisting  in  the  same  ship  at  the  same  time ;  an  actual  privilege 
from  Coquimbo,  and  an  ideal  one  from  Canton,  charged  at  its 
highest  speculative  value.  The  total  absence  of  any  credit  for 
the  freight  of  Pawson's  goods  from  Coquimbo,  and  of  any  charge 
for  this  Canton  privilege,  as  a  Canton  privilege,  by  Graham, 
and  the  total  absence  of  any  charge  for  the  freight  of  Pawson's 
goods  by  the  Chesapeake,  in  DonneWs  account,  all  go  to  prove 


88  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  »».  Donnell.     Donnell  ts.  Pawson's  Adm'rs. — 1899. 

that  this  vision  of  a  subsisting  privilege,  in  a  non-subsisting  voy- 
age, had  never  entered  the  heads  of  these  practical  men.    It 
was  left  for  the  ingenuity  of  our  learned  friends,  on  the  other 
side,  to  start  this  chimera,  and  it  did  not  occur  even  to  them  to 
start  it,  till  their  imaginations  had  been  heated  and  ignited  by 
the  collisions  of  the  trial.    The  court  will  find  the  proof  of  this 
fact  in  the  account ;  where  it  will  be  found  that,  after  Graham 
had  closed  and  signed  his  account,  under  his  signature,  in  the 
right  hand  column,  there  are  three  entries  headed  "  claim,  as 
set  up  in  court,  viz."  and  then  assuming  the  balance  as  it  had 
been  struck  by  Graham,  $5,552  97,  they  add  to  it  for  drip 
stones  and  duties  saved,  $48  06,  and  then,  for  the  first  time, 
this  Canton  privilege  makes  its  appearance  under  the  title  of 
"Loss  of  Canton  privilege,  $3,050!"  in  lieu  of  the  $255  52, 
which  Graham  had  entered  at  the  foot  of  the  opposite  column, 
on  account  of  the  deficiency  of  weight,  merely  from  Coquimbo. 
Nor  had  our  learned  friends  the  grace  even  to  throw  into  the  op- 
posite scale  the  freight  of  Pawson's  goods  from  Coquimbo;  but 
they  claim  both  the  privilege  of  supposititious  goods,  on  a  sup- 
posititious  voyage,  and  the  privilege  of  actual  goods  on  an  actual 
voyage  ;  and  thus,  according  to  their  statement  of  the  account, 
Pawson  gets  the  benefit  of  a  double  investment  of  the  same 
capital ;  that  is  to  say,  he  gets  the  freight  of  an  imaginary  Can- 
ton cargo,  in  which  his  capital  might  have  been  invested  if  the 
ship  had  gone  there ;  and  also  the  freight  of  the  goods  in  which 
that  capital  was  actually  invested  at  Coquimbo:  the  learned 
counsel,  seeming  to  suppose,  that  as  they  had  a  fat  pigeon  to 
pluck,  it  was  not  necessary  to  be  at  all  scrupulous  as  to  the  ex- 
tent of  the  depredation.     The  court,  however,  not  being  dis- 
posed to  "  go  the  whole"  length,  instruct  the  jury,  that  if  they 
allow  the  plaintiff  the  Canton  privilege,  they  must  allow  the  de- 
fendant  the   freight  on  Pamon's  adventure  from   Coquimbo. 
After  such  a  manifestation  of  the  grasp-all  disposition  on  their 
own  part,  it  does  not  seem  to  be  with  the  best  of  all  possible 
graces  that  the  learned  counsel  on  the  other  side  complains  of 
the  spiru  which  concocted  DonneWs  statement  of  the  account. 
But  waiving  this  interchange  of  courtesies,  let  us  proceed  from 


OF  MARYLAND.  89 

Pawson's  Adm'rs  vs.  Donnell.     Donneil  vs.  Pawson's  Adm'rs. — 1829. 

this  view  of  the  origin  of  this  Canton  claim,  to  the  consideration 
of  its  nature. 

It  is  proper  to  observe,  in  the  first  place,  that  this  is  not  an  in- 
sulated contract  for  an  insulated  voyage.  This  is  not  Pawson's 
first  and  only  connexion  with  Donnell.  It  appears  by  Graham's 
letter,  that  he  had  been  previously  in  his  employment,  for  in  re- 
fusing to  admit  the  freight  for  the  cordage,  he  reasons  upon 
DonneWs  own  construction  of  the  captain's  privilege  in  a  pre- 
vious voyage  which  had  been  performed  for  him  by  Pawson  in 
1816.  It  is  the  case,  then,  of  a  sea  captain,  looking  to  a  per- 
manent and  profitable  connexion,  in  the  line  of  his  business, 
with  an  opulent  and  enterprising  merchant.  This  fact  should  be 
borne  in  mind. 

It  is  essential  to  the  successful  pursuit  of  commerce,  that  the 
merchant  should  have  the  uncontrolled  privilege  of  planning  and 
altering  his  enterprizes  at  pleasure.  In  all  his  operations  he  is 
governed  by  the  intelligence  which  he  is  continually  receiving, 
of  the  state  of  the  markets  abroad ;  and  as  these  markets  are 
always  fluctuating,  it  is  an  every  day's  occurrence  to  see  a  com- 
plex voyage,  which  had  contemplated  several  ports,  varied  and 
remodified  in  the  course  of  its  progress,  at  the  pleasure  of  the 
merchant  for  whose  benefit  it  is  made.  Those  who  enter  a  mer- 
chant's employment,  enter  it  with  full  knowledge  of  his  sove- 
reign power  over  the  destination  of  his  ship.  The  captain 
knows  that  he  is  bound  to  obey  the  owner's  instructions,  with- 
out asking  for  a  reason.  He  knows,  that  with  regard  to  his 
owner  "sic  voJo,  sic  jw&eo,  stet  pro  vatione  voluntas"  is  reason 
enough,  and  that  he  the  captain  has  nothing  to  do  bdt  to  obey. 
With  regard  to  any  little  adventure  which  the  captain  is  per- 
mitted to  have  on  board,  and  to  carry,  free  of  freight,  it  is  a 
mere  dependant  on  the  great  enterprizes  of  the  merchant.  The 
overruling  object  of  the  voyage  is  the  profit  of  the  owner.  The 
captain  avails  himself  of  the  owner's  experience,  skill  and 
knowledge,  in  seeking  the  most  profitable  ports,  to  make  his 
own  small  investments  at  the  same  ports.  He  knows  very  well 
that  the  voyage  is  not  made  on  his  account,  but  on  the  sole  ac- 
count of  his  owner.  He  is  not  the  charterer  of  the  ship.  His 
VOL.  1—12. 


90  CASES  IN  THE  COURT  OF  APPEALS 

Pawson'9  Adm'rs  vs.  Donnell.     Donncll  vs.  Pawson's  Adm'rs — 1829. 

instructions  are  not  charter  parties  and  contracts  of  affreiglitment, 
in  which  light  they  seem  to  be  erroneously  viewed  on  the  other 
side.  The  privilege  accorded  to  him  is  a  mere  dependant  pri- 
vilege following  the  fortunes  of  the  larger  adventure  as  obse- 
quiously as  the  cock-boat  follows  the  ship  to  which  she  is  lash- 
ed, and  to  which  she  belongs;  and  the  cock-boat  might  just  as 
rationally  complain  that  the  ship  had  changed  her  course,  as  the 
captain  complain  that  the  owner  had  changed  the  destination  of 
the  voyage ;  because  the  captain  enters  the  service  with  full 
knowledge  that  this  power  of  change  is  perfectly  arbitrary  on  the 
part  of  the  owner.  With  regard  to  his  own  small  venture,  he 
knows  that  it  will  be  generally  true,  that  what  is  most  profitable 
for  his  owner  will  be  most  profitable  for  himself;  that  if,  for  ex- 
ample, the  market  of  Baltimore  was  already  glutted  with  Can- 
ton goods,  so  that  his  owner  had  no  longer  a  hope  of  a  profit  on 
Canton  goods  at  that  market,  neither  could  he  hope  for  a  profit 
on  the  same  kind  of  goods  in  the  same  market;  and  even  when 
it  is  otherwise,  and  the  captain  would  prefer  for  his  own  inter- 
est, that  the  original  destination  had  not  been  changed,  he 
knows  that  he  is  to  find  his  indemnity  for  any  petty  temporary 
loss,  in  the  permanency  of  his  connexion  with  a  rich  and  bold 
and  skilful  adventurer,  whose  prosperity  had  already  shewn  how 
well  he  could  play  at  the  game  of  commerce;  and  that  if  he 
should  lose  to-day  by  the  change  of  a  voyage,  he  would  gain 
a  hundred  fold  in  the  long  run  by  the  permanency  of  the  con- 
nexion. The  captain's  object  is  to  be  permitted  to  wield  his 
little  capital  at  the  ports  which  he  visits  for  his  owner,  and  to 
carry  his  goods  free  of  freight  in  the  owner's  ship.  There  is 
no  stipulation  on  the  part  of  the  owner,  that  his  ship  shall  visit 
such  and  such  ports.  If  there  were  such  a  stipulation,  Pawson, 
if  he  had  lived,  might  have  maintained  an  action  for  damages 
against  Donnell  for  not  having  sent  the  ship  to  Canton.  But 
this,  surely,  cannot  be  pretended.  Nay,  it  is  conceded  that 
Donnell  had  the  right  to  change  the  destination  of  the  ship  at 
pleasure:  and  this  concession  is  utterly  inconsistent  with  the 
idea  of  a  stipulation  with  Paicson,  that  the  ship  should  go  to 
Canton;  for  if  there  were  such  a  stipulation,  Donnell  had  no 


OF  MARYLAND.  91 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

right  to  violate  it,  no  man  having  a  right  to  violate  the  rights  of 
another.  Now,  if  the  original  plan  of  the  voyage  by  Canton 
did  not  amount  to  a  stipulation  that  the  ship  should  go  to  that 
port,  and  consequently  gave  Paicson  no  right  to  sue  for  dama- 
ges, the  opinion  of  the  court  below  is  wrong,  for  this  is  the  very 
thing  which  they  permit  Paicson  virtually  to  do ;  for  they  per- 
mit him  to  claim  damages  for  the  loss  of  the  Canton  privilege 
on  the  ground  of  his  title  to  it  by  stipulation.  They  allow  him 
to  prove  what  such  a  privilege  from  Canton  would  have  been 
worth  in  that  year,  and  to  recover  the  amount  so  proved  in  the 
form  of  damages ;  an  opinion  which  cannot  possibly  be  right,  ex- 
cept on  the  postulate  that  Donnell  had  no  right  to  alter  the  ori- 
ginal voyage  by  reason  of  this  stipulated  privilege  with  the 
captain.  But  it  is  conceded  that  the  owner  has  the  sovereign 
right  to  change  the  voyage  at  pleasure — and  if  he  has  a  right 
to  do  so,  he  surely  cannot  be  made  to  answer  for  it  as  wrong. 
On  our  side,  we  admit  that  the  captain  is  entitled  to  his  pri- 
vilege by  force  of  the  stipulation ;  that  is,  he  is  entitled  by  the 
stipulation  to  bring  home  twenty-five  tons  by  admeasurement,  or 
25,000  Ibs.  by  weight,  of  goods,  in  DonnelVs  ship,  free  of 
freight.  This  is  the  substance  and  the  whole  effect  of  the  stip- 
ulation according  to  the  law  and  usage  of  merchants.  The 
error  of  the  opposite  opinion  arises  from  considering  Donnell  as 
under  a  stipulation  to  send  the  ship  to  Canton,  or  to  answer  the 
captain  in  damages  if  he  fails  to  do  so.  But  such  a  construction 
would  lay  a  burthen  upon  commerce,  which  would  not  only  em- 
barrass it  in  the  extreme,  but  destroy  it  altogether.  A  mer- 
chant could  never  change  the  original  plan  of  his  voyage,  with- 
out meeting  an  action  for  damages  by  the  master,  at  every  step ; 
and  if  the  voyage  be  a  trading  voyage,  consisting  of  many  parts, 
it  is  easy  to  perceive  that  the  owner  is  altogether  at  the  mercy 
of  his  captain,  and  the  direction  of  the  voyage  taken  out  of  the 
owner's  hands  and  placed  in  those  of  his  servant;  a  perversion 
of  all  commercial  ideas  so  monstrous,  that  the  opinion  which 
leads  to  it  cannot  be  right.  That  the  owner  has  a  right  to 
change  the  course  of  the  voyage  at  pleasure,  is  one  of  the  first 
axioms  in  commercial  operations,  and  it  has  been  necessarily 


J8  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  vs.  Fawson's  Adm'rs. — 1829. 

conceded  on  the  other  side.  The  inevitable  consequence  of 
which  is,  that  the  privilege  of  the  captain  is  ambulatory  and 
contingent,  as  to  tlie  port  from  which  it  shall  he  taken.  It  de- 
pends upon  the  owner's  pleasure,  and  is  known  on  all  hands  to 
depend  on  his  pleasure  in  directing  the  movements  of  the  ship. 
The  substance  of  the  stipulation  is,  that  the  captain  shall  carry 
so  much  free  of  freight ;  but  from  what  port  he  shall  carry  it  de- 
pends on  the  ultimate  pleasure  of  the  owner,  and  grows  necessa- 
rily out  of  his  sovereign  control  over  the  voyage.  Hence,  when 
an  owner  in  the  outset,  plans  a  complicated  voyage,  consisting 
of  many  parts,  and  gives  the  captain  a  privilege  e.  g.  of  twenty- 
five  tons  from  the  last  named  foreign  port,  it  is  always  taken  as 
subject  to  the  condition  that  the  plan  of  the  voyage  shall  not  be 
changed  by  the  owner,  or  that  if  it  shall  be  changed,  the  cap- 
tain shall  have  his  equivalent  in  the  same  number  of  tons  from 
whatever  port  shall,  under  such  change  of  voyage,  become  the 
port  of  departure  for  the  home  port.  Such,  it  is  manifest,  was 
the  understanding  of  Donnell,  of  Pawson  and  of  Graham,  and 
it  may  be  with  confidence  averred,  that  such  is  the  understand- 
ing of  all  commercial  men.  It  cannot  be  otherwise  without 
placing  commerce  under  a  load  of  embarrassments,  which 
would  long  since  have  crushed  and  destroyed  it 

If  this  view  of  the  subject  be  sound,  as  it  is  confidently  be- 
lieved to  be,  the  consent  of  Pawson  to  the  change  of  the  voy- 
age, is  wholly  immaterial.  The  privilege,  as  a  privikge  from 
Canton,  fell,  when  the  owner,  in  the  just  exercise  of  his  author- 
ity, struck  out  that  port  from  the  plan  of  the  voyage.  Being, 
from  its  nature,  dependant  entirely  on  the  condition  of  the  ship's 
going  to  that  port,  there  was  an  end  to  it  as  soon  as  the  owner 
determined  that  the  ship  should  not  go  to  that  port ;  and,  howe- 
ver the  question  was  put  to  the  court,  the  court  erred  in  the  pos- 
itive instruction  which  they  gave  to  the  jury,  that  this  claim 
depended  on  the  question,  whether  Pawson  had,  with  a  full 
knowledge  of  his  legal  rights,  waived  this  privilege,  and  con- 
sented to  the  change  of  the  voyage.  They  were  wrong  in 
treating  as  a  reality  and  a  substance  what  had  never  been 
more  than  a  mere  shadow,  and  which  had  ceased  to  be  even  a 


OF  MARYLAND.  93 


Pawson's  Adm'rsrs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs 1829. 

shadow  after  the  change  of  the  voyage  on  which  it  depended, 
and  they  were  wrong  in  making  the  extermination  of  that  voy- 
age to  depend,  in  any  degree,  on  Pawsori's  consent,  because  its 
extermination  was  an  act  within  the  sole  and  perfect  competen- 
cy of  the  owner  alone,  and  entirely  independent  of  Pawson's 
consent,  or  refusal. 

But  suppose,  for  the  sake  of  the  argument,  Pawson's  consent 
to  the  change  of  the  voyage  to  have  been  necessary  to  put  an 
end  to  this  privilege  from  Canton;  it  is  respectfully  submitted, 
that  that  consent  is  as  expressly  given  as  consent  in  such  a  case 
can  be  given.  Not  only  is  it  in  proof,  and  that  in  writing, 
that  he  cheerfully  acceded  to  the  proposed  change  of  the 
voyage,  but  that  he  recognized  the  transfer  of  his  privilege 
from  Canton  to  Coquimbo,  and  proposed  to  send  home  the  pro- 
ceeds of  his  little  capital  from  Coquimbo,  not  on  the  footing  of 
freight,  but  on  the  footing  of  his  privilege. 

Donnell,  in  his  letter  of  26  Dec.  1819  to  Pawson,  after  stat- 
ing that  mature  reflection  had  satisfied  him  that  a  Canton  cargo 
could  not  be  realized  in  Baltimore,  proceeds  thus — "  I  there- 
fore revoke  and  countermand  the  orders  1  gave  you  to  proceed 
from  Chili  to  Canton,  and  now  substitute,  that  you  will  return 
with  the  ship  and  cargo  of  copper  direct  from  the  coast  of  Chili 
to  Baltimore"  He  then  proceeds  immediately  to  the  subject 
of  the  captain's  privilege,  in  these  words — "  As  relates  to  the 
disposal  and  investment  of  your  own  funds,  you  must  use  your 
own  discretion  by  investing  it  in  copper,  or  any  thing  else,  and 
bringing  it  with  you  in  the  ship — the  copper  may,  (as  I  hope  it 
will,)  be  bought  on  terms  that  will,  ^ith  my  funds  and  yours, 
load  the  ship  very  deep,  but  if  necessary  you  must  load  her 
very  deep.  Should  you  fail  in  getting  copper  on  the  coast  of 
Chili,  you  will  immediately,  on  finding  it  so,  proceed  from 
thence  to  Samarang,  in  the  island  of  Java,  and  there  invest  my 
funds,  and  your  own,  in  coffee,  (no  other  article  of  the  produce 
of  the  island  will  answer,)  and  proceed  from  thence  direct  to 
Baltimore.  The  government  of  Batavia  may  object  to  your 
loading  at  Samarang,  being  an  out  port,  but  you  must  use  every 
means  in  your  power  to  obtain  from  the  government  a  permis- 


94  r \SES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Doniwll.     Donncll  t's.  Pawson's  Adm'rs. — 1829. 

sion,  as  you  will  be  able  to  put  on  board  coffee  at  Samarang, 
two  or  three  dollars  per  picol  less  than  at  Batavia" 

As  explanatory  of  this  letter,  it  is  proper  to  call  the  court's 
attention  to  the  description  of  the  captain's  privilege,  as  it  stood 
in  the  voyage  first  planned.  It  will  be  found  at  the  close  of 
DonneWs  letter  of  the  18th  of  November,  1819,  and  is  in  these 
words:  "To  prevent  misunderstanding  I  deem  it  necessary  to 
state  your  compensation  to  be  two  thousand  dollars,  payable  on 
your  return,  with  a  privilege  from  Canton  not  to  exceed  twen- 
ty-five tons,  but  it  is  understood  that  you  are  not  to  put  any  cop- 
per or  heavy  article  on  board  at  Chili,  as  my  views  are  that 
you  completely  load  her  there  with  copper,  and  that  only  for 
my  account."  In  his  postscript  to  this  letter  of  the  1 8th  Nov. 
1819,  Donnell  anticipates  the  possibility  of  being  disappointed 
in  procuring  copper  at  Chili,  and  in  that  event  gives  a  similar 
direction  with  that  in  the  letter  of  the  26th  Dec.  as  to  proceed- 
ing to  Batavia  for  a  cargo  of  coffee,  and  thence  direct  to  Balti- 
more; so  that  in  the  original  plan  of  the  voyage,  Canton  was 
not  contemplated  as  a  port  to  which  the  ship  would  certainly 
proceed :  for  in  the  owner's  views  of  the  subject  at  that  time  it 
was  made  to  depend  on  the  contingency  of  being  able  to  get  a 
cargo  of  copper  at  Chili.  And  we  find  him  shifting  the  cap- 
tain's privilege  at  pleasure  from  Canton  to  Batavia,  and  from 
Canton  goods  to  Java  coffee,  at  pleasure,  in  the  full  exercise  of 
his  clearly  understood  rights  as  owner.  So  in  his  letter  of  the 
26th  Dec.  when  he  had  determined  that  the  ship  should  not  visit 
Canton,  he  provides  for  the  captain's  privilege  by  taking  off 
the  interdict  as  to  his  putting  copper,  or  other  heavy  articles  on 
board  at  Chili;  and  authorises  him  to  bring  home  his  funds  in 
copper,  or  any  thing  else  he  pleases;  or  if  by  failing  to  get  a 
cargo  of  copper  at  Chili,  he  finds  it  necessary  to  go  to  Java, 
to  bring  home  his  funds  in  coffee.  It  is  hence  very  manifest 
what  DonneWs  understanding  of  his  rights  as  owner  were. 
What  says  Pawson  to  this  change  of  voyage  ?  In  his  letter  of 
Feb.  7, 1820,  from  London,  he  says — "  I  have  had  the  pleasure 
to  receive  your  letter  of  the  26th  Dec.  in  which  you  are  pleas- 
ed to  alter  the  original  intention  of  the  voyage,  which  will  be 


OF  MARYLAND, 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adtn'rs.  —  1829. 


cheerfully  and  strictly  attended  to,  and  if  on  my  arrival 
I  shall  find  it  necessary  to  proceed  to  the  island  of  Java,  no  ex- 
ertions shall  be  wanting  to  have  your  wishes  fulfilled  in  getting 
the  cargo  of  coffee  only  at  Samarang."  Again,  to  shew  Pan- 
son's  distinct  understanding  that  his  original  privilege  from 
Canton  or  Batavia  was  now  transferred  to  Coquimbo,  he  says 
in  his  letter  from  that  place  of  Sept.  4,  1820,  "  as  I  may  possi- 
bly not  have  another  opportunity,  direct  to  the  United  States 
shortly,  I  would  thank  you  when  you  make  insurance  on  the 
ship  and  cargo,  also  to  insure  for  my  account  the  same  sum 
which  you  did  me  the  favour  to  insure  from  London  here.  I 
think  it  probable  it  will  be  shipped  in  silver  bullion  and  cop- 
per." And  again,  still  more  explicitly,  in  his  letter  of  4th  Nov. 
1  820,  from  Coquimbo,  he  says,  "  In  my  former  letters  I  re- 
quested you  to  insure  for  my  account  the  sum  of  $5,000. 
I  now  have  to  request  you  will  insure  $1,000  more.  If  I  find 
the  ship  too  heavy  laden  with  your  copper,  I  shall  curtail  my 
privilege  in  that  article,  and  bring  my  funds  in  silver."  If  this 
be  not  a  consent,  a  free,  voluntary,  cheerful  consent,  to  take  his 
privikge  from  Coquimbo  in  lieu  of  that  from  Canton  or  Batavia 
according  to  the  original  voyage,  language  has  lost  its  meaning, 
and  discussion  is  idle  and  delusive. 

It  is  insisted,  on  the  other  side,  that  this  was  not  a  question 
for  the  court,  but  a  question  for  the  jury.  Why  ?  Because  it 
is  said  it  is  a  question  which  did  not  depend  on  letters  alone, 
but  was  to  be  inferred  from  the  whole  correspondence,  and  the 
acts  of  the  parties  taken  together,  and  so  is  exactly  like  the  cases 
of  Laidlow  vs.  Organ,  2  Wheaton,  ^83,  and  Etting  vs.  Bank  of 
the  United  States,  11  Wheaton,  75.'  But  it  is  not  so;  for  it  is  a 
question  arising  upon  the  letters  alone.  We  do  not  rely  upon  a 
single,  act  of  either  the  parties  to  aid  our  construction  of  the 
letters.  We  say,  that  upon  the  face  of  the  letters  alone  there  ig 
a  clear  and  cheerful  consent  on  the  part,  of  Pauson  to  the  change 
of  the  voyage,  and  the  substitution  of  the  privilege  from  Co- 
quimbo, in  lieu  of  that  contemplated  in  the  original  voyage. 
How  are  these  letters  to  be  construed  ?  Not  by  the  technical 
rigour  which  is  applied  to  special  pleading,  or  to  the  old  com- 


96  CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm're. — 1829. 

mon  law  conveyances.  They  are  letters  written  by  commer- 
cial men,  in  a  course  of  business,  and  are  to  be  construed  with 
the  freedom  and  candour  which  are  always  applied  to  such  a 
correspondence,  and  so  construed  there  cannot  be  a  rational 
doubt  that  Petit-son  freely  and  cheerfully  adopted  the  substitu- 
ted voyage  and  privilege.  The  court's  attention  is  particularly 
invited  to  the  declaration  in  his  last  letter,  that  if  he  should  find 
the  ship  too  heavy  laden  with  DonneWs  copper,  he  would  cur- 
tail his  privilege  in  that  article,  and  bring  home  his  funds  in  sil- 
ver. His  privilege  in  what  article  ?  in  copper.  From  where  ? 
from  Coquimbo.  Did  he  mean  that  he  would  curtail  his  privil- 
ege from  Canton  in  copper  ?  Did  he  even  propose  to  bring 
home  copper  from  Canton?  Once  more,  did  Pmcson  expect  to 
pay  freight  for  the  copper  which  he  was  about  to  bring  home 
from  Coquimbo?  For  the  court  have  said,  and  justly  said, 
that  if  he  meant  to  rely  on  his  privilege  from  Canton,  he  was 
bound  to  pay  freight  on  his  goods  from  Coquimbo?  Did  he  ex- 
pect that  he  was  to  pay  such  freight  when  he  himself  express- 
ly declares  that  he  was  going  to  bring  it  home  in  part  of  his 
privilege,  and  the  rest  of  his  funds,  if  necessary,  in  silver. 

It  is  unnecessary  to  pursue  so  palpable  a  proposition  any  fur- 
ther. It  must  be  manifest  to  the  court,  that  Pawson  knew  that 
Donnell  had  merely  exercised  his  proper  rights  in  changing  the 
voyage ;  that  Pawson  acceded  to  this  change  willingly  and 
cheerfully,  and  perfectly  understood  that  in  consequence  of  that 
change,  and  as  a  necessary  part  of  it,  his  privilege  from  Can- 
ton to  Batavia,  according  to  the  original  voyage,  was  now  com- 
muted for  the  same  privilege  of  twenty-five  tons  from  Coquimbo. 
And  as  all  this  appears  upon  the  letters  alone,  it  was  a  question 
solely  for  the  court,  under  the  authority  of  J\facheath  i/s.  Haldi- 
mand,  I  T.  R.  172,  180,  and  Ferries  vs.  Walsh,  5  Hair.  $f 
Johns.  308. 

But  the  court  below  instructed  the  jury,  that  the  right  to  set 
up  this  claim  of  damages  for  the  loss  of  the  Canton  privilege, 
not  only  depended  on  the  question,  whether  Pawson  had  agreed 
to  waive  that  privilege,  and  accept  in  lieu  of  it  the  privilege 
from  CoquimbO)  but  on  the  further  question,  whether  he  made 


OF  MARYLAND.  97 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adni'rs. — 1829. 

such  waiver  and  acceptance  with  a  knowledge  of  his   legal 
rights. 

In  this  last  qualification  of  the  instruction  it  is  conceived  that 
there  is  a  double  error.  1.  In  supposing  that  Pawson  had  a 
right  to  object  to  the  change  of  the  voyage,  or  to  insist  on  this 
privilege,  as  a  subsisting  privilege  from  Canton,  after  the  voy- 
age had  been  changed  by  the  authority  of  the  owner.  2.  In 
putting  it  to  the  jury  to  say,  whether  such  waiver  and  accept- 
ance were  made  with  a  knowledge  of  his  legal  rights,  when 
there  was  not  an  atom  of  testimony  in  the  cause,  to  draw  that 
knowledge  into  question.  Every  man  is  presumed  to  be  conu- 
sant  of  his  legal  rights  till  the  contrary  appears.  The  evidence 
every  where  exhibits  Pawson  as  a  man  of  superior  intelligence. 
All  his  letters  and  all  his  actions,  are  those  of  a  scholar,  and  a 
man  of  judgment  and  endowments  far  above  the  great  mass  of 
those  who  are  engaged  in  similar  pursuits,  nor  is  there  one 
scintilla  of  proof  in  the  whole  record  tending  in  the  slightest 
degree  to  impeach  his  capacity.  And  yet  it  is  in  this  case  that 
the  court,  sua  sponte,  raise,  for  the  consideration  of  the  jury,  the 
question,  whether  Pawson  acted  with  a  knowledge  of  his  legal 
rights.  The  Court  of  Appeals,  in  the  case  of  Davis  vs.  Davis, 
7  Harr.  fy  Johns.  36,  took  the  case  out  of  the  hands  of  the  jury 
on  the  ground,  that  although  there  was  some  evidence  in  the 
cause,  it  was  not  such  evidence  as  ought  to  satisfy  a  reasonable 
man  of  the  truth  of  the  proposition.  The  court  of  Baltimore 
county,  reversing  this  rule,  refuse  to  decide  a  proposition  which 
properly  belongs  to  them  as  a  court,/ (the  construction  of  the 
letters)  and  hand  over  the  whole  subject  to  the  jury,  on  the 
ground  that  the  proposition  submitted  to  them  depended  on  an- 
other proposition  which  belonged  peculiarly  to  the  jury,  to  wit, 
whether  Pawson  acted  with  a  knowledge  of  his  legal  rights, 
when  there  was  no  evidence  in  the  case  which  had  a  tendency 
to  raise  this  latter  question.  Thus  it  is  a  question  gratuitously 
raised,  without  a  tittle  of  evidence  to  prompt  it,  and  which,  thus 
raised,  is  supposed  to  excuse  the  court  for  refusing  to  decide  on 
the  construction  of  the  letters,  whereas  the  truth  is,  that  if  the 
question  had  really  been  called  for  by  the  evidence,  the  court 
VOL,  1—13. 


100         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

court  on  the  part  of  the  appellant.  Relying  on  those  arguments 
aiul  authorities,  and  claiming  the  full  benefit  of  them,  it  is  in- 
tended to  confine  the  further  argument  to  two  questions — 

1.  Whether  the  contract  was  not  an  entire  one,  and   the 
whole  compensation,  therefore,  lost  by  the  death  of  Paicson  at 
Coquimbo  before  he  had  completed  the  contract. 

2.  Whether  if  Pawson's  representatives  are  entitled  to  reco- 
ver a  rateable  portion  of  that  compensation,  the  court  did  not 
err  in  the  termini  which  they  gave  to  the  jury  for  the  ascer- 
tainment of  the  ratio  of  compensation. 

1.  This  question  arises  on  the  appellant's  fifth  prayer,  which 
presents  the  single  point  of  the  entirety  of  the  contract,  and 
its  defeat  by  the  death  of  Pawson  at  Coquimbo  before  its  com- 
pletion. 

Natural  justice,  it  may  be  admitted,  would  seem  to  require 
that  every  contract  for  labour  should  be  considered  as  divisible 
and  apportionable,  and  where  a  party  has  been  prevented  by 
causes  over  which  he  has  no  control,  from  completing  his  en- 
gagements, he  should  be  paid  for  so  much  of  them  as  he  has 
faithfully  performed.  The  law,  however,  leaves  it  to  the  par- 
ties to  make  their  own  contracts;  and  wherever  they  have  made 
an  express  contract  the  law  never  interferes  to  vary  that  con- 
tract upon  any  notion  of  natural  justice.  There  is,  perhaps, 
no  class  of  contracts  which  more  strikingly  illustrates  the  truth 
of  this  principle  than  the  contract  for  rent.  A  rents  of  B,  a 
storehouse  on  a  wharf  in  town,  and  stipulates  expressly  to  pay 
him  so  much  rent  at  the  -end  of  the  quarter  or  year.  The 
house  is  burnt  down  the  next  day,  and  the  tenant  has  no  use  of 
the  property  at  all ;  yet  he  must  pay  the  rent.  A  whole  wharf 
was  consumed  in  Norfolk  by  the  great  fire  of  February,  1804. 
The  houses  which  covered  that  wharf,  (CampbelVs  wharf,) 
were  wholly  in  the  hands  of  tenants.  These  tenants,  with 
their  families,  were  all  unhoused  in  the  severest  part  of  the 
winter,  and  many  of  them  lost  their  goods,  as  well  as  their 
houses.  The  extent  of  the  calamity  excited  universal  sympa- 
thy. They  were  unable  to  repair,  the  misfortune  was  one 
beyond  their  control.  They  had  lost  the  enjoyment  of  that  for 


OF  MARYLAND.  101 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

which  alone  they  had  stipulated  to  pay  the  rent.  The  landlord 
was  a  minor;  and  his  guardian  was  the  late  Judge  Tucker,  who 
considered  himself  bound  to  act  according  to  law.  The  ten- 
ants insisted  on  an  abatement  of  the  rent.  Natural  justice 
seemed  to  require  it.  But  the  law  was  clear.  Their  contracts 
were  express;  and  for  that  reason  alone  they  were  held  bound 
to  pay  the  rent.  In  the  course  of  the  investigation  a  case  was 
cited  from  Meyn's  Reports,  where  a  tenant  had  been  disposses- 
sed, and  held  out  by  a  hostile  invasion  of  the  kingdom.  Yet 
he  was  held  bound  to  pay  the  rent  by  force  of  his  express  con- 
tract. That  was  a  case  in  which  natural  justice  seemed  to 
forbid  the  demand;  but  all  considerations  of  natural  justice 
were  silenced  by  the  express  contract  of  the  parties,  and  the 
unwillingness  of  the  law  to  interfere  with  those  contracts. 

It  is  on  this  ground  that  it  has  become  a  principle  of  law  in 
the  construction  and  enforcement  of  contracts,  that  "unless 
there  be  some  express  stipulation  to  the  contrary,  whenever  an 
entire  sum  is  to  be  paid  for  the  entire  work,  the  performance  or 
service  is  a  condition  precedent;  being  one  consideration  and 
one  debt,  it  cannot  be  divided."  These  are  the  words  of  Starkie 
in  his  3d  volume,  1765;  and  he  adds  "this  holds  equally,  whe- 
ther a  specific  price  has  been  agreed  on  or  not.  It  is  univer- 
sally incumbent  on  the  plaintiff  to  prove  performance."  In  the 
•American  edition  of  Slarkie  the  court  will  find  under  note  (k,) 
and  note  (1,)  to  the  above  cited  page,  a  collection  of  British 
and  American  decisions,  all  goiiig  to  illustrate  and  fortify  the 
position,  that  a  contract  made  'entire  by  the  parties,  cannot  be 
divided  by  i/ie  court,  and  several  of  those,  it  is  believed,  at 
least  as  strong,  if  not  stronger,  than  the  case  now  under  consi- 
deration. 

Thus  in  the  modern  case  of  Ellis  vs.  Hamlen,  3  Taunt.  52 — 
"  It  was  held  that  a  builder  who  undertook  a  work  of  special 
dimensions  and  materials,  and  deviated  from  the  specification, 
could  not  recover  on  a  quantum  valcbant  for  the  work,  labour 
and  materials." 

In  The  Countess  of  Plymouth  vs.  Throgmorton,  I  Salk.  G5, 
the  defendant's  testator  had  appointed  the  plaintiff  to  receive 


100          CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donncll  «.  Pawson's  Adm'rs. — 1829. 

court  on  the  part  of  the  appellant.  Relying  on  those  arguments 
ami  authorities,  and  claiming  the  full  benefit  of  them,  it  is  in- 
tended to  confine  the  further  argument  to  two  questions — 

1.  Whether  the  contract  was  not  an  entire  one,  and   the 
whole  compensation,  therefore,  lost  by  the  death  of  Pawson  at 
Coquimbo  before  he  had  completed  the  contract. 

2.  Whether  if  Pawsorfs  representatives  are  entitled  to  reco- 
ver a  rateable  portion  of  that  compensation,  the  court  did  not 
err  in  the  termini  which  they  gave  to  the  jury  for  the  ascer- 
tainment of  the  ratio  of  compensation. 

1.  This  question  arises  on  the  appellant's  fifth  prayer,  which 
presents  the  single  point  of  the  entirety  of  the  contract,  and 
its  defeat  by  the  death  of  Pawson  at  Coquimbo  before  its  com- 
pletion. 

Natural  justice,  it  may  be  admitted,  would  seem  to  require 
that  every  contract  for  labour  should  be  considered  as  divisible 
and  apportionable,  and  where  a  party  has  been  prevented  by 
causes  over  which  he  has  no  control,  from  completing  his  en- 
gagements, he  should  be  paid  for  so  much  of  them  as  he  has 
faithfully  performed.  The  law,  however,  leaves  it  to  the  par- 
ties to  make  their  own  contracts;  and  wherever  they  have  made 
an  express  contract  the  law  never  interferes  to  vary  that  con- 
tract upon  any  notion  of  natural  justice.  There  is,  perhaps, 
no  class  of  contracts  which  more  strikingly  illustrates  the  truth 
of  this  principle  than  the  contract  for  rent.  A  rents  of  B,  a 
storehouse  on  a  wharf  in  town,  and  stipulates  expressly  to  pay 
him  so  much  rent  at  the. end  of  the  quarter  or  year.  The 
house  is  burnt  down  the  next  day,  and  the  tenant  has  no  use  of 
the  property  at  all ;  yet  he  must  pay  the  rent.  A  whole  wharf 
was  consumed  in  Norfolk  by  the  great  fire  of  February,  1804. 
The  houses  which  covered  that  wharf,  (Campbell's  wharf,) 
were  wholly  in  the  hands  of  tenants.  These  tenants,  with 
their  families,  were  all  unhoused  in  the  severest  part  of  the 
winter,  and  many  of  them  lost  their  goods,  as  well  as  their 
houses.  The  extent  of  the  calamity  excited  universal  sympa- 
thy. They  were  unable  to  repair-r  the  misfortune  was  one 
beyond  their  control.  They  had  lost  the  enjoyment  of  that  for 


OF  MARYLAND.  101 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawsori's  Adm'rs. — 1829. 

which  alone  they  had  stipulated  to  pay  the  rent.  The  landlord 
was  a  minor ;  and  his  guardian  was  the  late  Judge  Tucker,  who 
considered  himself  bound  to  act  according  to  law.  The  ten- 
ants insisted  on  an  abatement  of  the  rent.  Natural  justice 
seemed  to  require  it.  But  the  law  was  clear.  Their  contracts 
were  express;  and  for  that  reason  alone  they  were  held  bound 
to  pay  the  rent.  In  the  course  of  the  investigation  a  case  was 
cited  from  Jlleyri's  Reports,  where  a  tenant  had  been  disposses- 
sed, and  held  out  by  a  hostile  invasion  of  the  kingdom.  Yet 
he  was  held  bound  to  pay  the  rent  by  force  of  his  express  con- 
tract. That  was  a  case  in  which  natural  justice  seemed  to 
forbid  the  demand;  but  all  considerations  of  natural  justice 
were  silenced  by  the  express  contract  of  the  parties,  and  the 
unwillingness  of  the  law  to  interfere  with  those  contracts. 

It  is  on  this  ground  that  it  has  become  a  principle  of  law  in 
the  construction  and  enforcement  of  contracts,  that  "unless 
there  be  some  express  stipulation  to  the  contrary,  whenever  an 
entire  sum  is  to  be  paid  for  the  entire  work,  the  performance  or 
service  is  a  condition  precedent;  being  one  consideration  and 
one  debt,  it  cannot  be  divided."  These  are  the  words  of  Starkie 
in  his  3d  volume,  1765;  and  he  adds  "this  holds  equally,  whe- 
ther a  specific  price  has  been  agreed  on  or  not.  It  is  univer- 
sally incumbent  on  the  plaintiff  to  prove  performance."  In  the 
American  edition  of  Slarkie  the  court  will  find  under  note  (k,) 
and  note  (1,)  to  the  above  cited  page,  a  collection  of  British 
and  American  decisions,  all  going  to  illustrate  and  fortify  the 
position,  that  a  contract  made  'entire  by  the  parties,  cannot  be 
divided  by  tlie  court,  and  several  of  those,  it  is  believed,  at 
least  as  strong,  if  not  stronger,  than  the  case  now  under  consi- 
deration. 

Thus  in  the  modern  case  of  Ellis  vs.  Hamlen,  3  Taunt.  52 — 
"  It  was  held  that  a  builder  who  undertook  a  work  of  special 
dimensions  and  materials,  and  deviated  from  the  specification, 
could  not  recover  on  a  quantum  valebant  for  the  work,  labour 
and  materials." 

In  The  Countess  of  Plymouth  vs.  Throgmorton,  1  Salk.  G5, 
the  defendant's  testator  had  appointed  the  plaintiff  to  receive 


10-2          CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  rs.  Pawson's  Admr's.— 1829. 

his  rents,  and  promised  to  pay  £100  a  year  for  the  service,  and 
tin*  testator  died  after  the  plaintiff  liad  sewed  him  for  three  quar- 
ters of  a  ycrtr,  and  the  court  held,  that  the  contract  being  entire 
could  not  be  divided.  In  Cvtter  vs.  Powell,  6  T.  R.  326,  where 
the  employer  engaged  in  writing  to  pay  a  sailor  the  sum  of 
thirty  guineas,  provided  he  proceeded  and  continued  and  did  his 
duty  on  board  for  the  voyage,  and  before  the  end  of  the  voyage 
the  sailor  died,  it  was  held  that  the  contract  was  entire,  and  that 
as  the  service,  which  was  a  condition  precedent,  had  not  been 
performed,  nothing  could  be  recovered. 

Is  it  or  is  it  not  to  be  considered  as  a  principle  of  law,  that 
where  an  entire  compensation  is  stipulated  to  be  paid  for  an  en- 
tire service,  the  whole  service  must  be  performed  as  a  condi- 
tion precedent  to  the  demand,  and  that  there  can  be  no  division 
or  apportionment  of  the  payment  for  a  part  performance  of  the 
service  ?  It  seems  impossible  to  deny  it  Nor  will  it  do  to 
speak  of  this  principle  as  antiquated  and  obsolete:  for  it  is 
traced  through  the  British  books  down  to  Starkie,  one  of  the 
most  recent  and  authoritative  writers,  who  has  engrafted  the 
principle  on  his  text  as  an  existing  and  solid  principle  of  the 
English  law ;  and  the  host  of  cases  quoted  by  the  American 
editor,  shows  how  extensively  the  principle  has  been  recogniz- 
ed and  acted  upon  in  the  United  Stales. 

It  is  indeed  admitted  by  the  learned  counsel  on  the  other 
side,  "  that  if  from  the  words  of  the  contract  it  appears  that 
the  parties  intended  that  the  entire  performance  should  be  a 
condition  precedent  to  the  payment  of  any  part  of  the  compen- 
sation, then  such  condition,  like  every  other  condition  prece- 
dent, must  be  strictly  and  entirely  performed.  For  the  parties 
have  a  right  to  contract  as  they  please.  But  in  order  to  pro- 
duce this  result,  it  must  clearly  appear  from  the  words  of  the 
contract  that  such  was  the  intention  of  the  parties;  and  such 
was  the  case  of  Cutter  vs.  Powell  The  same  principle  pre- 
vails in  commercial  contracts. 

This  admission  is  taken  in  the  terms  in  which  it  is  stated,  (and 
it  is  correctly  stated)  and  we  are  willing  that  this  case  shall  be 
tested  by  it.  It  must  clearly  appear  from  the  words  of  the 


OF  MARYLAND.  103 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs.-^-1829. 

contract,  that  it  Was  the  intention  of  the  parties,  that  the  entire 
performance  should  be  a  condition  precedent  to  the  payment  of 
any  part  of  the  compensation,  But  when  does  the  law  hold 
such  intention  clearly  to  appear  from  the  words  of  the  contract  ? 
Let  Starkie  answer  the  question — "  whenever  an  entire  compen- 
sation is  to  be  paid  for  the  entire  work,  the  performance  or  service 
is  a  condition  precedent,  being  one  consideration  and  one  debt.,  it 
cannot  be  divided" — "  unless  there  be  some  express  stipulation  to 
the  contrary"  The  law  then  considers  this  intention  of  the  par- 
ties that  the  entire  performance  shall  be  a  condition  precedent 
to  the  payment  of  any  part  of  the  compensation,  as  always  clear* 
ly  appearing  from  the  words  of  the  contract,  where  an  entire  com- 
pensation is  to  be  paid  for  tlie  entire  work,  unless  tliere  be  some 
express  stipulation  to  the  contrary.  Such  is  the  legal  construction 
of  such  a  contract;  and  such  will  be  its  fixed  and  final  construc- 
tion, unless  there  shall  be  some  evidence  of  a  general  and  known 
usage  acting  upon  such  contracts  to  vary  its  construction.  In 
the  case  of  Cutter  vs.  Powell,  the  court,  after  stating  the  con- 
struction of  the  instrument  upon  its  face,  admitted  that  it  would 
be  modified  by  proof  of  a  general  usage  acting  upon  such  con- 
tracts, to  make  them  divisible ;  and  they  stayed  the  ultimate 
judgment  to  let  in  such  proof  if  it  could  be  adduced,  feeling 
manifestly  all  the  unwillingness  to  enforce  the  legal  construction 
of  the  instrument  which  can  be  possibly  felt  in  the  case  at  bar, 
if  parol  proof  of  such  a  usage  could  be  awduced.  But  it  ap- 
pears by  the  original  report  of  the  case  that  no  such  usage 
could  be  adduced,  and  the  instrument  necessarily  had  its  legal 
effect. 

It  will  be  understood  as  admitted  by  us,  that  general  usage, 
or,  what  is  the  same  thing,  a  general  understanding  in  the  com- 
munity, founded  on  such  usage,  will  control  the  construction  of 
these  contracts,  and  render  divisible  and  apportionable  a  con- 
tract  which  upon  its  face  would  be  indivisible  according  to  the 
foregoing  rule.  An  instance  of  this  is  put  by  Lawrence,  Justice, 
in  Cvtter  and  Powell;  for  he  said  "  that  a  common  servant ,  al- 
though hired  in  a  general  way,  was  to  be  considered  as  hired 
with  reference  to  the  general  understanding  upon  tlie  subject,  that 


I 

UK          CVSES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donncll.     Donncll  r».  Pawson's  Adin'rs. — Ib^ii). 

tin-  servant  shall  be  entitled  to  his  wages  for  the  lime  he  served, 
though  he  do  not  continue  in  the  seivicc  for  a  year."  Here  he 
puts  the  course  of  decision  upon  the  general  understanding, 
founded,  manifestly,  on  the  general  and  known  usage,  which 
usage  always  enters  into  the  contract  as  a  part  of  the  contract. 
And  he  confines  the  remark  to  common  servants,  by  which  he 
is  understood  by  the  annotator  to  Starkie,  to  mean  domestic  ser- 
vants :  for  there  is  no  usage  or  understanding,  it  would  seem,  as 
to  servants  in  husbandry,  with  regard  to  whom,  therefore,  the 
contract  takes  its  legal  and  natural  effect  of  throwing  on  the  ser- 
vant proof  of  the  performance  of  the  whole  service,  as  a  condi- 
tion precedent  to  his  right  to  demand  compensation.  Hence,  in 
the  case  of  Tlic  King  vs.  Whittlebury,  6  T.  R.  467,  the  same 
Justice,  Lawrence,  observed  "  that  nothing  could  be  due  to  the 
servant,  (who  was  it  seems  a  servant  in  husbandry)  till  the  com- 
pletion of  the  year,  or  the  end  of  the  service."  The  same  prin- 
ciple was  decided  by  Lord  Elknborough,  as  to  a  servant  in  hus- 
bandry, in  the  case  of  Spain  vs.  Jirnott,  2  Starkie^s  cases,  265. 
The  learned  counsel,  on  the  other  side,  seems  to  suppose  that 
these  cases  decide  nothing  but  as  to  the  time  of  bringing  the 
action;  that  is,  that  the  action,  for  the  part  of  the  wages  due, 
cannot  be  brought  till  the  end  of  the  year.  On  the  contrary, 
they  are  understood  by  us  as  being  decided  on  the  very  princi- 
ple now  under  discussion,  to  wit,  fhat  the  entire  performance 
of  the  contract  is  fc  condition  precedent  to  the  demand  of  com- 
pensation, and  the  whole  wages  are  forfeited  by  the  failure  of 
any  part  of  the  performance.  Cornyns,  in  his  Digest,  tit.  Jus- 
tices of  the  Peace,  (B  63,)  says  "if  a  servant  depart  from  his 
service  he  shall  lose  his  whole  wages" — for  which  he  cites 
Bro.  tit.  Labourer,  40,  and  the  same  law  is  laid  down  from 
Dalian's  Justice,  in  the  note  already  cited  from  Starkie.  Con- 
tracts with  mariners  are  subject,  it  is  presumed,  to  the  same 
law  of  usage,  thus  modifying  the  terms  of  a  contract,  which 
would  otherwise  be  considered  as  a  condition  precedent,  as  is 
manifest  would  have  been  done  in  the  case  of  Cutter  vs.  Powell, 
if  any  such  usage  could  have  been  shewn.  And  on  the  same 
footing  of  usage  and  general  understanding  rests,  it  is  presum- 


OF  MARYLAND.  105 

Pawson's  Adm'rs  vs.  Donnell.    Donne'll  vs.  Pawson's  Adm'ra. — -1829. 

ed,  the  construction  of  contracts  for  the  hire  of  slaves  in  this 
State,  if  indeed  the  law  has  been  ever  so  judicially  settled,  for 
which,  however,  no  decision  is  quoted.  In  England  we  have 
seen  it  would  be  otherwise  as  to  servants  hired  for  the  purposes 
of  husbandry. 

On  this  review  of  the  authorities  it  may  be  fairly  considered 
as  established,  that  wherever  an  entire  sum  is  stipulated  to  be 
paid  for  an  entire  service,  the  contract  is  indivisible,  and  the 
performance  of  the  entire  service  becomes  a  condition  prece- 
dent to  the  demand  of  any  portion  of  the  compensation,  unless, 
in  the  language  of  Starkie,  there  be  some  positive  stipulation  to 
the  contrary,  or  unless  there  be  some  general  understanding  or 
usage  in  regard  to  such  contracts  that  they  shall  be  apportioned. 
Now  with  regard  to  a  positive  stipulation  to  the  contrary,  none 
such  can  be  pretended  in  this  case ;  and  with  regard  to  usage  or 
general  understanding,  none  such  can  be  pretended  to  have 
been  shewn  or  to  exist  in  regard  to  contracts  like  this  with  a 
supercargo.  And  it  will  not  do  to  borrow  such  usage  or  under- 
standing from  other  classes  of  contracts  and  apply  them  to  this; 
to  say  for  example  that,  in  given  cases,  the  contracts  of  mariners 
of  domestic  servants  in  England,  and  hired  slaves  in  this  State, 
have  been  apportioned ;  and  then  claim  the  analogy  as  applying 
to  this  contract.  If  this  were  allowable  the  case  of  Cutter  vs. 
Powell  would  never  have  been  decided,  for  there  the  analogy 
was  close  and  at  hand.  The  contract  in  that  case  was  the 
contract  of  a  mariner,  and  it  would  not  have  been  denied  that 
the  common  contracts  of  mariners  were  in  some  cases  appor- 
tionable ;  but  this  analogy,  close  as  it  was,  as  belonging  to  the 
same  class  of  characters  and  the  same  description  of  services, 
was  not  permitted  to  be  applied  to  the  specific  description  of 
contracts  before  the  court,  but  the  court  called  for  proof  of 
the  usage  as  bearing  on  that  particular  form  and  species  of  con* 
tracts.  So,  if  the  analogies  now  offered  would  have  sufficed, 
the  acknowledged  usage  to  apportion  the  contracts  of  domestic 
servants  would  have  been  permitted  to  be  brought  to  bear  on 
the  contracts  for  servants  for  the  purpose  of  husbandry.  But  it 
was  not  permitted,  and  the  impassable  line  of  demarcation  be  - 
VOL.  I— 14. 


l(Ni         CASES  IN  THE  COURT  OF  APPEALS 

Pawron's  Adm'rs  rj.  Donncll.     Donncll  vs.  Pawson's  Adm'rs — 1829. 

twcen  mariners  under  those  two  forms  of  contract,  and  servants 
under  those  different  species  of  engagement,  proves  that  in  that 
country  at  least  the  court*  arc  not  disposed  to  indulge  in  this 
loose  transfer  of  usage  and  understanding  from  one  class  of 
contracts  to  another.  For  it  is  manifest  to  these  courts,  and 
must  be  obvious  to  every  one  who  will  look  steadily  at  the  sub- 
ject, that  if  in  answer  to  the  principle  of  law  which  has  been 
conceded  with  regard  to  the  entirety  of  a  contract,  it  be  enough 
to  say  and  to  show  that  some  contracts  entire  in  form  are  appor- 
tionablc  by  force  of  usage,  the  principle  is  no  longer  of  any 
value;  nay  it  has  no  longer  an  existence;  it  is  virtually  explod- 
ed, if  such  an  answer  will  suffice  because  the  same  answer  may 
be  given  to  every  objection  founded  on  the  entirety  of  a  con- 
tract. If  this  principle  with  regard  to  the  entirety  of  a  con- 
tract, which  grows  entirely  out  of  respect  to  the  intention  of 
the  contracting  parties,  and  their  sovereign  right  to  bargain  as 
they  please,  be  immoral  or  pernicious,  and  it  is  thought  better 
that  courts  should  not  only  expound  but  make  bargains  for  their 
fellow-citizens,  let  the  matter  be  avowed  openly  and  above 
board,  and  let  the  English  principle  be  publicly  exploded. 
But  let  us  not  profess  to  admit  and  respect  the  principle  in 
terms,  while  we  explode  it  in  practice,  and  render  it  virtually  a 
nullity. 

This,  then,  be  it  remembered,  is  a  contract  vrith  a  supercargo, 
as  to  which  species  of  contract  there  is  no  proof  in  the  cause 
of  the  existence  of  any  usage  or  understanding  explanatory  of 
the  contract.  It  is  a  contract,  then,  the  construction  of  which 
depends  solely  upon  its  own  terms,  and  the  only  remaining  ques- 
tion would  seem  to  be,  is  it  a  contract  in  which  an  entire  com- 
pensation is  stipulated  to  be  paid  for  an  entire  service  ?  This 
question  can  only  be  answered  by  referring  to  the  letters  of 
Donnellj  which  state  the  whole  contract,  both  the  service  and 
the  compensation.  The  letter  of  the  18th  November,  1819, 
chalks  out  the  whole  service  in  detail.  It  is  a  minute  specifica- 
tion of  the  duties  which  Pawson  was  to  perform  ;  carries  him 
around  the  whole  voyage ;  and  after  this  specification  of  the 
services,  concludes  thus—"  to  prevent  misunderstanding  I  deem 


OF  MARYLAND.  107 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

k  necessary  to  state  your  compensation  to  be  $2,000,  payabk  on 
your  return."  Nothing  seems  to  be  clearer  than  that  this  is  one 
entire  compensation  stipulated  for  the  entire  service.  It  is  not  at 
the  rate  of  $ 2,000;  but  the  sum  of  $2,000,  in  solido,  payable  on 
Pauison's  return,  and  clearly  payable  for  the  entire  service.  If 
there  be  any  truth  in  the  principle  therefore,  or  any  case  to  which 
it  is  to  be  permitted  to  apply,  this  is  such  a  case,  unless  there 
be  some  positive  stipulation  to  the  contrary,  which  is  not  and 
cannot  be  pretended,  or  some  proof  of  usage  and  understanding 
to  the  contrary  applicable  to  contracts  in  this  form  with  super- 
cargoes, which  can  be  as  little  pretended. 

In  opposition  to  this  view  of  the  subject,  it  is  intimated  rather 
than  directly  averred  in  the  opposing  argument,  that  this  princi- 
ple rests  on  ancient  decisions.  For  the  learned  counsel,  after 
having  quoted  Sergeant  Williams''  note  (4,)  to  Pordage  vs.  Cole, 
I  Saund.  320,  and  2  Starkie's  Ev.  643-4,  and  note  (n,)  proceeds 
with  the  following  inference  from  those  authorities :  "  What- 
ever, therefore,  may  have  been  the  ancient  decisions  upon  this 
subject,  it  has  for  manj  years  been  settled  in  the  English  courts 
that  in  ordinary  contracts,  with  or  without  seal,  the  defendant, 
according  to  the  principles  of  the  common  law,  is  liable  in  pro- 
portion to  the  benefit  derived  from  the  contract,  although  he 
may  not  have  received  the  whole  consideration  for  which  he 
stipulated,  provided  the  plaintiff  is  not  in  fault,  and  does  not 
possess  the  power  to  perform  the  whole  stipulation.  This  is  the 
general  rule  applicable  to  all  contracts.  It  is,  however,  admit- 
ted, that  if,  from  the  words  of  ther  contract,  it  appears  that  the 
parties  intended  that  the  entire  performance  should  be  a  condi- 
tion precedent  to  the  payment  of  any  part  of  the  compensation, 
then  such  condition,  like  every  other  condition  precedent,  must 
be  strictly  and  entirely  performed."  So  that  the  learned  coun- 
sel would  seem  to  give  the  rule,  as  he  would  have  it,  to  be  the 
general  rule  and  the  modern  rule  ;  and  the  principle  on  which  we 
insist,  as  an  exception  from  that  general  rule,  resting  only  on 
ancient  decisions,  (one  of  which,  that  in  the  case  of  the  Coun- 
tess of  Plymouth  vs.  Throgmorlon,  Salkeld  65,  he  seems  to  think 
was  misunderstood  by  the  court  of  King's  Bench,)  and  deserv- 


106          CASES  IN  THE  COURT  OF  APPEALS 

Fawson's  Adm'rs  r».  Donnell.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

ing  very  little  quarter  on  the  score  of  morality.  There  is  cer- 
tainly no  want  of  professional  address  in  this  mode  of  present- 
ing the  subject.  But  we  apprehend,  that  when  the  authorities 
relied  on  to  maintain  this  view  of  the  case  shall  come  to  be  ex- 
amined, it  will  be  found  that  these  two  rules  of  law,  instead  of 
maintaining  the  relation  of  a  general  rule  and  an  exception,  are 
two  separate  and  independent  rules  relating  to  different  classes  of 
cases,  and  each,  in  its  respective  sphere  of  action,  equal  in  gen- 
erality and  dignity  to  the  other.  Let  us  make  this  examination 
of  these  authorities  as  briefly  as  possible. 

The  first  of  them,  as  cited  on  the  other  side,  is  Pordage  vs. 
Cole,  I  Sounders'  Reports,  320,  (»».  4.)  On  turning  to  this 
note  it  will  be  found  that  the  whole  business  of  the  note  was  to 
shew  in  the  first  place  the  artificial  and  subtle  distinctions  on 
which  the  question  of  dependent  and  independent  covenants  fre- 
quently turned  in  the  old  books ;  and  in  the  next  place  to  offer 
a  few  rules  by  way  of  test  on  that  obscure  and  much  mooted 
question  of  the  law.  After  observing  that  covenants,  &c.  are 
to  be  construed  to  be  either  dependent  or  independent  of  each 
other  according  to  the  intention  and  meaning  of  the  parties,  and 
the  good  sense  of  the  case,  and  that  technical  words  should 
give  way  to  such  intention,  he  proposes  the  following  rules  for 
the  discovery  of  such  intention,  in  order  to  enable  the  pleader 
to  distinguish  when  it  is  necessary  in  a  declaration  to  aver  per- 
formance on  his  own  part.  These  rules  are  worthy  of  attention 
in  this  case ;  first,  because  of  their  analogous  bearing ;  and  se- 
condly, to  enable  the  court  to  estimate  the  value  of  the  passage 
quoted  from  this  note  on  the  other  side.  The  first  rule  propos- 
ed by  Sergeant  Williams,  is  this — 1.  If  a  day  be  appointed  for 
payment  of  money,  or  part  of  it,  or  for  doing  any  other  act,  and 
the  day  is  to  happen  or  may  happen  before  the  thing  which  is 
the  consideration,  is  to  be  performed,  the  covenants  are  inde- 
pendent, and  an  action  may  be  brought  for  the  money,  &c.  be- 
fore performance,  for  it  appears  that  the  party  relied  upon  his 
remedy,  and  did  not  make  the  performance  a  condition  prece- 
dent. Sergeant  Williams  then  offers  his  second  rule  in  these 
words :  "  But,  2.  When  a  day  is  appointed  for  the  payment  of 


OF  MARYLAND.  109 


Pawson's  Adm'rsw.  Donnell.    Donnell  vs.  Pawson's  Adm'rs. — 1829. 

money,  &c.  and  the  day  is  to  happen  after  the  thing  which  is 
the  consideration  of  the  money,  &c.  is  to  be  performed,  no  action 
can  be  maintained  for  the  money,  &c.  before  performance." 
The  court  is  requested  to  apply  this  rule  to  the  case  at  bar, 
and  they  will  see  that  it  is  decisive  of  this  question.  Sergeant 
Williams  proceeds — 3.  Where  a  covenant  goes  only  to  part  of 
the  consideration  on  both  sides,  and  a  breach  of  such  covenant 
may  be  paid  for  in  damages,  it  is  an  independent  covenant,  and 
an  action  may  be  maintained  for  a  breach  of  the  covenant  on 
the  part  of  the  defendant  without  averring  performance  in  the 
declaration.  4.  But  where  the  mutual  covenants  go  to  the 
whole  consideration  on  both  sides,  they  are  mutual  conditions, 
and  performance  must  be  averred.  5.  Where  two  acts  are  to 
be  done  at  the  same  time,  on  the  same  day,  neither  can  maintain 
an  action  without  shewing  performance  of,  or  an  offer  to  per- 
form his  part,  though  it  is  not  certain  which  of  them  is  obliged 
to  do  the  first  act ;  and  this  particularly  applies  to  all  cases  of 
sale.  This  is  a  skeleton  of  the  whole  note,  and  the  court  will 
find  by  reference  to  it  that  each  of  these  five  rules  is  separate 
and  distinct  from  the  rest,  embracing  separate  and  distinct 
classes  of  cases,  and  neither  of  these  rules  proposed  by  the  au- 
thor as  connected  with  or  at  all  influencing  the  decisions  of  cases 
falling  under  any  other  rule.  The  learned  counsel,  not  averting 
to  this  structure  of  the  note,  and  the  distinct  classes  into  which 
the  cases  are  thrown  under  these  several  and  distinct  rules, 
speaks  of  them  thus :  "  The  cases  upon  this  point  (of  conditions 
precedent)  are  collected  together  and  iherule  laid  down  in  Por- 
dage  vs.  Cok,  1  Saund.  320,  (note  4)  as  relates  to  sealed  instru- 
ments. 

"  The  conclusion  from  all  the  cases  is  stated  as  follows :"  and 
then  he  gives  a  quotation,  which  suits  the  purpose  of  his  argu- 
ment, and  which  he  exhibits  as  Sergeant  Williams'  result  from 
a  view  of  all  the  cases  touching  the  subject  of  conditions  prece- 
dent, whereas  the  learned  Sergeant  himself  declares  it  to  be 
his  conclusion  only  with  regard  to  tliat  class  of  those  cases 
which  falls  under  his  third  rule,  and  which  he  is  treating  as  en- 
tirely separate  from  those  cases  which  belong  to  his  other 


110         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  rs.  Donnell.     Donnell  n.  Pawson's  Adm'rs. — 1829. 

rules.  That  third  rule  embraces,  as  we  have  seen,  those  cases 
in  which  the  covenant  goes  only  to  a  part  oftlie  consideration  on 
both  sides,  and  in  which  the  party  who  complains  of  incomplete 
performance,  can  redress  himself  by  a  cross  action  for  damages 
on  account  of  that  short  performance.  After  citing  several 
cases  as  illustnttivc  of  this  rule,  the  Sergeant  proceeds  with 
the  words  quoted,  "  Hence  it  appears,  that  the  reason  of  the 
decision,  tn  these  and  other  similar  cases"  (that  is,  cases  in 
which  from  the  form  and  nature  of  the  contract  the  covenant 
goes  only  to  a  part  of  the  consideration  on  both  sides,  and  in 
which,  from  the  independent  character  of  the  covenants,  the 
party  may  redress  himself  for  the  incomplete  performance  of 
Uie  covenant  on  the  other  side  by  a  cross  action,)  "  besides  the 
inequality  of  the  damages,  seems  to  be,  that  where  a  person 
has  received  a  part  of  the  consideration  for  vthich  he  entered 
into  the  agreement,  it  would  be  unjust  that,  because  he  has  not 
had  the  whole,  he  should  therefore  be  permitted  to  enjoy  that 
part  without  either  paying  or  doing  any  thing  for  it.  There- 
fore, the  law  obliges  him  to  perform  the  agreement  on  his  part, 
and  leaves  him  to  his  remedy  to  recover  any  damage  he  may 
have  sustained  in  not  having  received  the  whole  considera- 
tion." Now,  before  the  learned  counsel  can  have  the  benefit 
of  this  conclusion,  he  must  shew  that  this  is  one  of  those  cases 
to  which  alone  Sergeant  Williams  applies  this  conclusion;  that 
is  to  say,  that  it  is  a  case  in  which,  from  the  form  and  nature  of 
the  contract,  the  covenant  goes  only  to  a  part  of  the  considera- 
tion on  both  sides.  The  fallacy  of  the  argument  consists  in 
supposing  this  to  be  a  general  conclusion  applicable  to  all 
sorts  of  covenants;  whereas  Sergeant  Williams  limits  it  ex- 
pressly to  the  specific  class  of  cases  embraced  by  his  third 
head;  that  is  to  say,  to  cases  where  the  covenant  goes  only  to 
part  of  the  consideration  on  both  sides,  and  a  breach  of  such 
covenant  may  be  paid  for  in  damages,  which  he  says  makes  an 
independent  covenant.  And  having  cited  all  the  cases  which 
belonged  to  this  head,  and  exhausted  his  own  remarks  upon  it, 
among  which  is  the  passage  quoted  by  the  counsel  on  the  other 
side,  he  proceeds  to  hia  fourth  class  in  these  words :  "  4.  But 


OF  MARYLAND.  Ill 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs,— 1829. 

when  the  mutual  covenants  go  to  the  whole  consideration  on 
both  sides,  they  are  mutual  conditions,  and  performance  must 
be  averred."  Now,  in  applying  the  general  conclusion  to  the 
case  at  bar,  the  counsel  begs  the  question :  for  he  assumes  that 
this  case  belongs  to  the  third  class,  and  not  to  the  fourth. 
Whereas  we  insist  that  it  belongs  to  the  fourth  class  to  which 
that  general  conclusion  has  no  relation ;  and  we  prove  that  it 
belongs  to  the  fourth  class,  first  by  the  test  prescribed  by  Star- 
feie,  that  it  is  an  entire  consideration  stipulated  to  be  paid  for  an 
entire  service;  secondly,  by  bringing  to  bear  upon  it,  the  test 
given  by  Sergeant  Williams  under  the  second  head  in  his  note, 
to  wit:  "  that  a  day  is  appointed  for  the  payment  of  the  money, 
and  the  day  so  appointed  is  to  happen  after  the  thing  which  is 
the  consideration  for  the  money  is  to  be  performed ;"  in  which 
case  Sergeant  Williams  adds,  "  no  action  can  be  maintained  for 
the  money  before  performance."  The  day  here  appointed  for 
the  payment  of  the  money  was  after  Pawson's  return — payable 
on  your  return — which  was  necessarily  after  all  the  services 
had  been  performed. 

We  are  much  deceived,  therefore,  if  this  note,  instead  of 
operating  favourably  to  the  other  side,  will  not,  when  it  is  care- 
fully dissected  and  attended  to,  be  found  to  operate  the  other 
way. 

The  passage  cited  from  2  Starkie,  643-4,  when  taken  in 
connexion  with  the  context  and  with  the  class  of  cases  of 
which  the  author  was  treating,  will  be  found  to  have  no  just 
relation  to  this  question.  StarkieXs  there  treating  expressly  of 
the  action  for  goods  sold  and  delivered.  He  begins  this  inves- 
tigation in  page  634,  and  pursues  it  down  to  the  passage  quoted. 
In  page  640,  he  says,  when  the  goods  which  have  been  deli- 
vered do  not  correspond  with  the  contract,  the  vendee  has  a 
right  to  repudiate  the  goods  so  delivered  in  toto,  and  if  he  do 
go,  the  vendor  cannot  recover;  but  if  he  choose  to  keep  the  in- 
ferior goods  so  delivered,  he  is  considered  as  adopting  them  in 
satisfaction  of  the  contract.  He  then  proceeds,  in  page  642, 
to  contemplate  the  case  where  the  contract  cannot  be  rescind- 
ed, as  where  the  goods  have  been  used  before  the  inferiority 


1 12         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  r».  Donnell.     Donnell  vs.  Pawson's  Adm'rs— 1829. 

has  been  discovered;  in  this  case  he  says  the  vendor  is  entitled 
to  recover  not  the  stipulated  price ;  and  then  comes  in  the  pas- 
sage quoted  on  the  other  side  in  this  connexion — "For  in  strict- 
nets  the  plaiiitiU'  who  has  not  performed  that  which  he  engaged 
for,  is  not  entitled  to  recover  at  all;  if  he  contracts  to  build  a 
dwelling-house,  he  is  not  entitled  to  recover  for  building  a 
stable.  But  still  if  the  defendant  be  bcnefitted  to  a  certain  ex- 
tent, and  does  not  repudiate  the  contract  in  toto,  it  seems  to  be  a 
rule  of  policy  and  convenience,  as  well  as  of  equity  and  jus- 
tice, that  the  plaintifl'  should  be  allowed  to  recover  to  the  ex- 
tt-nt  of  the  benefit  derived  by  the  defendant,  and  no  further, 
&c."  The  court  perceive,  therefore,  that  the  author  is  here 
treating  of  a  contract  with  regard  to  goods  sold,  in  which  the 
vendee  may,  if  he  choose,  repudiate  the  contract,  and  return 
the  goods;  but  in  which  he  has  chosen  to  receive  and  use  them. 
The  passage  quoted  is  in  application  to  contracts  of  that  cha- 
racter. But  how  could  Donnell  repudiate  the  contract  in  this 
case  and  return  the  partial  services  which  Pawson  had  render- 
ed. The  principle  has  no  practicable  application  to  this  case. 
And  that  it  is  not  of  universal  application,  the  case  of  Ellis  vs. 
Hamlen,  3  Taunt.  52,  proves;  where  it  was  decided  that  a 
builder  who  undertook  a  work  of  specified  dimensions  and  ma- 
terials, and  deviated  from  the  specification,  could  not  recover 
on  a  quantum  valebant  for  the  work,  labour  and  materials. 

The  cases  cited  by  the  opposite  counsel  from  Abbot,  Peter's 
admiralty  decisions,  &c.  relate  exclusively  to  mariners;  and  are 
founded  on  the  laws  of  Oleron,  Wisbuy,  and  the  Hanse-towns, 
and  the  ordinance  of  Louis  the  XIV.  This  is  a  class  of  con- 
tracts which  stands  by  itself,  and  so  peculiarly  by  itself,  that 
we  have  seen  the  court  of  King's  Bench,  in  Cutter  vs.  Powell, 
refusing  to  extend  the  principles  and  usage  of  these  contracts 
even  to  the  case  of  a  mariner  when  his  contract  was  in  a  pe- 
culiar form  which  removed  it  from  the  general  ground  of  ma- 
riners' contracts.  But  the  case  now  before  the  court  is  not  that 
of  a  mariner  at  all ;  but  of  a  supercargo,  whose  contract  is  not 
to  be  tested  by  the  principles  established  by  those  ancient  laws 
and  ordinances  in  favour  of  a  particular  and  favoured  class  of 


OF  MARYLAND.  113 


Pawson's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

men;  but  which  is  to  be  tested  by  the  general  principles  ap- 
plicable to  other  contracts,  which  have  been  already  cited. 

It  is  true,  as  the  learned  counsel  has  remarked,  on  the  other 
side,  that  in  the  case  of  Cutler  vs.  Powell,  two  of  the  judges 
did  advert  to  the  circumstance,  that  the  wages  were  unusually 
high,  as  a  proof  that  they  were  intended  to  be  contingent.  But 
they  did  not  ground  their  decision  on  that  fact.  It  is  manifest, 
that  they  only  called  it  in  aid  to  fortify  the  construction,  which 
they  had  given  to  the  contract  on  its  face.  And  it  is  equally 
manifest,  that  without  that  circumstance  the  contract  would 
have  received  the  same  construction.  The  court  is,  therefore, 
respectfully  requested  to  compare  the  terms  of  that  contract 
with  those  of  the  contract  in  the  case  at  bar;  and  we  are  much 
mistaken  if  they  will  not  find  that  the  contracts  were  substan- 
tially the  same. 

The  learned  counsel  on  the  other  side,  supposes  that  Justice 
Lawrence  mistook  the  decision  in  Portage  vs.  Cole,  1  Salkeld, 
65.  If  he  did,  Starkie  also  mistook  it  in  the  note  before  cited, 
from  his  third  volume,  page  17G5-6,  where  he  presents  the 
case  as  deciding  the  same  point,  "that  the  contract  be  ing  entire 
could  not  be  divided."  And  it  is  manifest,  that  Salkeld  himself 
mistook  it,  too,  or  else  his  report  is  entirely  delusive  and  de- 
ceptive. And  with  all  the  unaffected  respect,  which  I  feel  for 
the  learned  counsel  on  the  other  side,  I  cannot  help  thinking 
that  Justice  Lawrence,  Starkie,  and  Salkeld,  having  no  particu- 
lar interest  to  bias  their  judgment,  will  be  quite  as  apt  to  un- 
derstand correctly  the  point  of  an  English  decision,  as  our 
learned  friend  on  the  other  side,  whose  judgment,  without  any 
disrespect  to  him,  may  be  suspected  of  not  being  quite  so  un- 
biassed. 

The  learned  counsel  seems  to  think,  too,  that  he  has  given 
quite  a  sufficient  answer  to  the  argument  dravvi>from  the  time  of 
payment  of  the  $ 2000,  to  wit,  that  they  were  to  be  payable  on 
Paicson's  return,  by  referring  to  1  Powell  on  Contracts,  267—8, 
and  to  Jlbbot  on  Skipping,  433,  434,  (note  I ,)  and  by  adding, 
that  "  the  words  in  DonneWs  letter  do  not  create  a  condition, 
VOL.  1—15. 


Ill          CASES  IN  THE  COUKT  OF  APPEALS 

Pawson's  Adm'rs  M.  Donncll.     Donncll  r.i.  Pawson's  Adm'rs.— 1829. 

they  arc  modal  only,  and  relate  to  the  manner  in  which  the  con- 
irael  shall  1)0  performed." 

It  is  wonderful  that  this  magical  word,  modal,  did  not  occur 
to  the  acute  and  learned  Servant  Williams,  when  he  was  com- 
piling the  note  before  quoted.  We  find  there,  that  in  utter  de- 
spite of  this  cabalistic  term,  he  has  erected  a  whole  class  of 
dependant  covenants,  (the  3d  class,)  on  this  circumstance  alone, 
of  the  time,  payment  being  fixed  at  a  day  posterior  to  that  at 
which  the  services  were  to  be  rendered;  which  he  could  never 
have  done,  if  he  had  been  aware  of  the  omnipotence  of  tin's 
word  modal. 

With  regard  to  Powell,  he  is  looking  to  a  very  different  case 
from  this.  He  is  by  no  means  affirming  it  as  a  proposition  of 
universal  truth,  that  time  is  -never  of  the  essence  of  a  contract, 
but  is  always  modal.  He  is  asserting  merely,  what  may  be 
safely  admitted,  that  there  are  cases  in  which  it  is  merely 
modal.  "  We  must  carefully  distinquish,  says  he,  between  con- 
ditions annexed  to  contracts  or  agreements,  and  circumstances 
annexed,  which  seem  to  import  conditions,  but  which  are  modal 
only;  neither  suspending,  disannulling,  nor  altering,  the  obliga- 
tion of  them,  but  only  relating  to  the  manner  of  performance; 
as  that  an  agreement  shall  be  performed  at  a  certain  day,  or  in 
a  certain  place.  And  he  then  puts  several  cases,  by  way  of 
illustration,  which  have  no  reference  to  the  mutuality  and  depen- 
dence of  covenants,  (which  is  tlie  very  question  fiere,)  but  which 
regard  the  construction  of  a  covenant  contemplated  on  one  side 
only,  and  in  which  he  says,  in  effect,  that  the  time  and  place 
are  not  of  the  essence  of  the  contract,  but  are  modal  only, 
leaving  the  essence  of  the  contract  untouched.  This  is  quite  a 
familiar  principle;  but  it  is  one  of  a  very  different  aspect  from 
that  which  we  are  now  considering,  and  which  formed  the  sub- 
ject of  Sergeant  Williams'*  note,  which  is  the  mutuality  or 
independence  of  covenants;  and  where,  as  we  have  seen,  the 
fixing  a  day  of  payment,  subsequent  to  the  time  at  which  the 
service  is  to  be  performed,  creates  at  once  a  condition  prece- 
dent with  regard  to  the  performance  of  the  service. 


OF  MARYLAND.  115 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

The  passage  cited  from  Abbot  is  the  same  on  which  we  have 
already  commented,  the  case  of  contracts  with  mariners,  rest- 
ing on  a  body  of  old  sea-laws  peculiar  to  themselves,  and  from 
which,  therefore,  no  analogy  can  be  fairly  brought  to  bear  on 
contracts  with  any  other  description  of  characters  which  rest 
on  the  general  law. 

After  this  review  of  the  law  on  the  subject,  it  will  only  re- 
main for  the  court  to  say,  whether  they  acknowledge  the  Eng- 
lish principle,  that  where  an  entire  compensation  is  stipulated 
for  an  entire  service,  the  contract  is  indivisible,  and  the  per- 
formance of  the  whole  service  becomes  a  condition  precedent 
to  the  demand  of  the  compensation. 

2.  But  now  admitting,  argumenti  gratia,  that  this  contract  is 
divisible,  and  the  compensation  to  be  apportioned,  did  the  court 
below  assume  the  proper  termini  of  the  service  to  make  the 
apportionment?  We  say  they  did  not;  for  that  this  is  a  con- 
tract with  a  supercargo,  whose  duties  begin  and  end  with  the 
voyage,  so  long  as  there  is  a  cargo  on  board.  What  is  a  super- 
cargo? He  is  one  placed  over  the  cargo  as  his  name  im- 
ports. He  is  placed  over  the  cargo,  just  as  the  master  is 
placed  over  the  ship.  The  master  represents  the  owner  of  the 
ship;  the  supercargo  represents  the  owner  of  the  cargo. 
"  From  the  general  nature  of  the  master's  employment,  he,  is  a 
stranger  to  the  cargo,  except  for  tlie  purposes  of  safe  custody  and 
conveyance."  2  Livcrmore,  214. 

"  But  when  the  character  of  supercargo  is  superaddcd  upon 
that  of  master,  (as  in  this  case,)  the  person  in  whom  these  cha- 
racters are  united,  stands  in  the  relation  of  agent  to  two  dis- 
tinct principals  at  once.  To  these  principals  he  owes  distinct 
duties,  according  to  the  nature  of  the  business  in  which  they 
have  employed  him;  for  a  breach  of  these  duties,  he  is  dis- 
tinctly responsible  to  them;  and  they  are  separately  liable  for 
the  injurious  consequences  of  his  misconduct  in  those  things 
which  respect  his  peculiar  duties  to  them."  Ibid. 

The  master  clothed  with  these  double  characters  may,  in  his 
character  of  supercargo,  do  with  the  cargo  what  the  owner,  if 
present,  might  do.  He  may  (for  example.)  as  supercargo,  ac- 


116          (ASKS  IN   THK  COURT  OF  APPKAI.S 

Pawson's  Adm'rs  rs.  Donnell.     Donncll  rs.  Pawson's  Adm'rs. — 1829. 

cept  the  cargo  at  a  port  short  of  the  port  of  destination,  and 
the  owners  of  the  ship  will  he  entitled  to  freight.  He  may,  as 
supercargo,  accept  and  sell  the  goods  at  a  port  of  necessity, 
which  he  could  not  do  as  master.  2  Livcrmore,  215,  216. 

From  the  circumstance  that  the  supercargo  represents,  exclu- 
sively, the  owner  of  the  cargo,  that  he  has  authority  over  the 
cargo  in  all  cases  of  unforeseen  emergency,  to  act  for  the  in- 
terest of  the  owner  of  the  cargo,  it  is  his  duty  to  accompany  the 
cargo,  in  order  to  be  ready  to  meet  all  such  emergencies,  and 
take  care  of  the  interest  of  his  principals,  and  consequently,  to 
accompany  the  cargo  to  its  final  port  of  delivery, 

The  court  below  seemed  to  be  of  opinion,  that  as  soon  as  the 
cargo  was  purchased,  and  put  on  board  at  Coquimbo,  and  the 
bills  of  lading  were  signed,  the  duties  of  the  supercargo  were 
at  an  end,  because  the  transportation  and  delivery  of  the  cargo 
at  the  home  port  became  then  the  duty  of  the  master  of  the 
ship.  The  master,  however,  as  we  have  seen,  is  a  stranger  to 
the  cargo,  except  for  the  purpose  of  safe  custody  and  convey- 
ance. Now,  suppose  the  ship  to  have  been  driven  into  a  port 
of  necessity,  with  a  damaged  cargo,  which  made  it  the  interest 
of  the  owner  to  have  an  immediate  sale — the  master  could  not 
sell  it,  but  the  supercargo  might.  Suppose  a  case  of  capture 
and  carrying  into  port,  where  the  interest  of  the  owner  of  the 
cargo  might  call  for  negociation,  ransom,  or  sale.  The  pow- 
ers of  the  supercargo  are  ample  for  all  these  purposes,  but  not 
so  those  of  the  captain.  These  contingencies,  to  be  sure,  might 
not  happen.  But  they  might;  and  as  they  might,  it  was  the  du- 
,ty  of  the  supercargo  to  have  been  on  board,  to  meet  them  and 
take  care  of  the  interest  of  his  principals.  It  is  fairly  to  be  in- 
ferred, that  it  was  the  intention  of  the  owner  of  the  goods,  that 
the  supercargo  should  be  on  board,  to  meet  all  possible  emer- 
gencies ;  and  hence  the  stipulation,  that  his  compensation  as  su- 
percargo should  be  payable  on  his  return. 

The  court  below,  therefore,  it  is  conceived,  erred  in  fixing 
the  last  terminus  of  the  supercargo's  duty  at  the  signature  of  the 
bills  of  lading  at  Coquimbo.  It  ought  to  have  been  fixed  at  the 
return  of  the  cargo  to  Baltimore;  the  supercargo  being  as  indis- 


OF  MARYLAND.  117 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

solubly  wedded  to  the  cargo  as  the  master  is  to  the  ship,  and 
having  no  more  right  to  leave  the  cargo  than  the  master  of  the 
ship. 

It  is  said,  however,  by  our  adversary,  that  if  the  court  have 
erred  in  this  respect,  we  have  no  right  to  complain  of  it,  be- 
cause in  our  prayer  we  fixed  the  termination  of  Paulson's  serv- 
ices at  the  investment  of  DonnelVs  funds  in  the  return  cargo ; 
whereas  the  court,  giving  us  more  than  we  asked,  have  fixed 
it  at  the  signature  of  the  bills  of  lading. 

There  are  two  answers  to  this : 

1.  That  the  prayer  is  misunderstood.     It  does  not  make  the 
investment  of  DonnelVs  funds  the  termination  of  Pawson's  ser- 
vice.    It  refers  to  the  investment  with  reference  to  the  time  of 
his  death.     He  died  before  he  had  even  completed  the  invest- 
ment of  the  funds.     The  word  even,  it  is  true,  is  not  there.     But 
it  is  submitted  to  the  court,  that  this  reciting  part  of  the  prayer 
fairly  admits  that  construction.     It  is  not,  however,  in  the  recit- 
als of  fact,  in  a  prayer,  that  you  look  for  the  prayer  itself.     To 
find  the  point  of  the  prayer,  you  look  only  to  that  which  is  the 
prayer :  and  in  this  fourth  prayer,  the  prayer  is,  that  the  court 
will  instruct  the   jury,  that  the  compensation  was  subject  to 
abatement  on  two   grounds.     First,  for  the  abridgment  of  the 
voyage,  by  striking  out  the  Canton  trip,  which  formed  a  part 
of  it,  when  the  compensation  was  fixed.     Second,  for  that  por- 
tion of  the  contemplated  services  of  Captain  Paws  on,  which  u-ere 
lost  to  the  defendant  by  his  death  at  Coquimbo:  not  specifying 
what  those  services  were,  but  leaving  it  open  to  the  defendant 
to  insist,  as  he  is  now  doing,  that  those  services  reached  down- 
to  the  return  of  the  cargo  to  Baltimore.     At  best,  it  is  mere 
matter  of  inference  on  the  other  side,  that  the  defendant's  coun- 
sel considered  the  services  of  Captain  Pawson,  as  supercargo, 
to  end  with  his  investment  of  DonneWs  funds. 

2.  Suppose  the  plaintiffs  construction  of  this  prayer  of  the  de- 
fendant's right :    What  then  ?    If  the  court  had  stopped  with  the 
simple  rejection  of  a  prayer,  wrong  in  itself,  there  would  have 
been  no  ground  of  complaint.     But  the  court  do  not  stop  with  a 
simple  rejection  of  the  prayer.     They  go  on  to  superadd  an  in- 


118          (   \si;s  IN   Till:  COIKT  OF  APPEALS 

Pawson's  Adm'rs  r».  Donncll.     Donnell  rs.  Pawson's  Admr's. — 1829. 

struction  of  tin  ir  own,  dill'rient  from  the  prayer;  and  the  excep- 
tion is  not  only  to  the  rejection  of  the  prayer,  but  also  to  the 
opinion  ami  direction  of  the  court.  And  surely,  in  the  appellate 
court,  it  is  perfectly  competent  to  the  appellant,  on  such  an  ex- 
ception, to  test  the  accuracy  of  that  opinion  and  direction,  by  the 
rules  of  law.  An  error  in  his  own  prayer  cannot  deprive  him  of 
this  right.  For  in  this  part  of  the  subject,  the  question  is  not, 
whether  the  prayer  was  right,  but  whether  the  opinion  and  di- 
rection were  right.  However  erroneously  a  party  may  pray 
when  the  court,  after  rejecting  the  prayer,  proceed  to  give  an 
original  opinion  and  direction  of  their  own,  they  undertake  to 
pronounce  the  law  of  the  case,  for  that  is  their  function.  And 
on  an  exception  to  such  opinion  and  direction,  the  question  is, 
"  have  the  court  pronounced  the  law  of  the  case  ?"  And  not, 
"  have  they  given  the  appellant  something  more  or  better  than 
he  asked  for  ?"  Have  they  given  him  all  that  he  is  entitled  to  ? 
Not,  have  they  given  him  more  than  in  a  mistake  of  his  rights 
lie  had  asked. 

We  hold  the  question,  therefore,  to  be  entirely  open  to  us ; 
and  the  court's  opinion  and  direction  were  wrong,  for  the  rea- 
sons which  have  been  assigned. 

We  have  concluded  the  argument  on  DonneWs  appeal.  But 
as  the  plaintiffs  counsel  in  the  cross  appeal,  are  about  to  reply 
on  his  points,  we  beg  leave  to  throw  together  here,  for  consi- 
deration, the  arguments  which  strike  us  as  supporting  the 
court's  opinion  under  the  plaintiff's  first,  second  and  third  bills 
of  exceptions,  and  as  a  full  answer  to  those  urged  by  the  open- 
ing counsel  on  the  other  side. 

The  attempt  of  the  opposite  argument  is  to  throw  on  Don- 
nell the  loss  of  the  gold,  which  was  confiscated  at  Guasco. 
The  question  arises  on  the  plaintiffs'  three  exceptions,  which 
fully  exhibit  all  the  grounds  on  which  the  plaintiff's  claimed  the 
appropriation  of  this  gold,  and  the  loss  of  it,  to  Donnell,  and  on 
which  Donnell,  by  his  counsel,  resisted  it. 

The  question  seems  to  be  a  very  simple  and  easy  one,  when 
impartially  and  candidly  considered,  and  the  dates  of  the  seve- 
ral transactions  carefully  noted. 


OF  MARYLAND.  119 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adtn'rs — 1829. 

Pawson  set  out  upon  this  voyage  in  the  double  character  of 
master  of  the  ship,  and  supercargo,  for  Donnell.  The  instruc- 
tions addressed  to  him  in  the  character  of  supercargo,  are  found 
in  DonnelVs  letters,  which  he  bore  and  accepted  as  the  guide 
of  his  actions.  In  DonnelVs  letter  of  the  1 8th  November,  1819, 
he  says  to  Pawson,  in  this  character  of  supercargo,  "with  the 
ship  and  the  coin  on  board,  you  will  proceed  to  the  port  of  Co- 
(juimbo,  in  Chili,  for  the  purpose  of  loading  entirely  with  cop- 
per, and  with  it  proceed  to  Canton."  Again,  "  if  you  have  the 
means  of  completing  the  purchase,  you  must  put  on  board  at 
least  12,200  quintals."  Again,  speaking  of  the  probability  of 
Pawson's  receiving  additional  funds  from  Mr.  M^Clure,  he  says, 
"  Should  you  see  him,  and  he  has  any  funds  of  mine,  or  that  he 
has  departed  from  thence,  and  you  find  he  has  placed  any  of 
my  property  in  the  hands  of  any  person  there,  in  either  case,  I 
authorise  and  empower  you  to  receive  and  carry  it  with  you, 
either  in  copper,  or  Spanish  dollars  of  the  old  coin."  Thus  anx- 
iously repeating  the  instruction,  that  all  his  funds  should  be  in- 
vested in  copper,  and  guarding  against  the  possibility  of  any 
other  investment,  more  especially  a  metallic  investment,  except 
in  Spanish  dollars,  and  those,  too,  of  the  old  coin.  In  the  close 
of  the  same  letter  he  says,  "  To  prevent  misunderstanding,  I 
deem  it  necessary  to  state  your  compensation  to  be  $2000,  pay- 
able on  your  return,  with  a  privilege  from  Canton,  not  to  exceed 
twenty-five  tons ;  but  it  is  understood  that  you  are  not  to  put  any 
copper  or  heavy  article  on  board  at  Chili,  as  my  views  are  that 
you  completely  load  her  with  coppery  and  that  also  for  my  account" 
The  same  solicitude  of  the  owner  to  invest  the  whole  of  his  funds 
in  copper,  is  kept  up  in  his  letter  of  the  26th  December,  1819, 
in  which  he  changes  the  voyage  by  striking  out  the  trip  to 
Canton.  That  Pawson  perfectly  understood  and  acceded  to 
DonnelVs  views  on  this  subject,  as  to  the  investment  of  all  Don- 
nelVs funds  in  copper,  is  clearly  established  by  his  letters  of  the 
15th  August,  1820,  and  the  4th  November,  1820,  from  Coquim- 
bo.  In  these  letters  he  states  his  progress  in  the  investment 
of  DonnelVs  funds  in  copper.  In  the  last  letter  he  says,  "  there 
is  now  purchased  for  your  account,  9,500  quintals,  nearly  7000 


I  »o          CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vi.  Donnell.     Donncll  vs.  Pawsun's  Adm'rs.— 1629. 

of  which  is  on  board,  and  the  remainder  in  Guasco,  whither  I 
shall  proceed,  and  take  it  in,  as  soon  as  I  get  my  crew  from  Val- 
paraiso" &c.  And  in  a  subsequent  part  of  the  same  letter,  he 
>.,}*— "1  shall,  however,  be  guided  by  my  judgment  as  the 
ship  conies  down  in  the  water,  and  if  possible,  bring  the  whole 
of  ymir  funds  in  copper."  And  again  in  the  same  letter — "//"  / 
find  the  dip  too  Jicavy  laden  with  your  copper,  I  shall  curtail  my 
privikge  in  that  article,  and  bring  my  funds  in  silver."  It  will 
be  observed,  that  he  says  in  the  last  letter,  he  had  already  en- 
gaged for  Donnell  9,500  quintals  of  copper,  7000  being  alrea- 
dy on  board,  and  the  rest  at  Guasco.  But  there  were  at  Guas- 
co, as  the  result  has  shewn,  3,015  quintals,  making  an  aggregate 
10,015  quintals.  We  have  seen  Pawsoii's  determination,  alrea- 
dy expressed  in  his  letter,  to  curtail  his  own  privilege,  in  order  to 
accomplish  the  primary  object  of  placing  all  DonneWs  funds  in 
copper.  And  as  demonstration  of  the  same  purpose,  in  the  dis- 
charge of  his  duty  to  his  employer,  he  declares  to  his  agents, 
Edwards  fy  Stewart,  that  he  would  appropriate  to  himself  only 
1 50  quintals  of  the  copper  at  Guasco,  if  the  ship  would  not 
lake  more  than  10,000  quintals,  and  to  carry  home  the  rest  of 
his  funds  in  Chinchilla  skins  and  silver.  See  the  letter  of  Ed- 
wards 4"  Stewart  of  January  19,  1821.  These  were  his  declar- 
ations, virtually  his  instructions,  made  to  his  agents,  Edwards  d^ 
Stewart,  before  his  death.  In  pursuance  of  these  instructions, 
they  ship  for  Pawson  his  150  quintals,  (short  only  by  23  Ibs.) 
leaving  applicable  to  DonneWs  funds  the  whole  residue  of  the 
copper  brought  home,  which  more  than  obsorbs  all  his  funds. 

Thus,  before  Pawson's  death,  and  while  he  was  yet  the  agent 
of  Donnell,  all  DonneWs  funds  had  been  invested  in  copper,  in 
strict  compliance  with,  DonneWs  instructions,  and  Pawson's  en- 
gagements and  avowed  purpose.  Pawson's  death,  then,  left  none 
of  DonneWs  funds  at  the  disposal  of  Edwards  Sf  Stewart.  It 
left  at  their  disposal  only  Paw-son's  funds  and  Goddard's. 
These  had  not  been  appropriated,  except  in  the  150  quintals 
of  copper  for  Pawson.  And  Edwards  fy  Stewart  fearing  to  ex- 
pend them  in  the  manner  which  they  declare  to  have  been  indi- 
cated by  Pawson,  (to  wit,  in  silver  bars,)  expend  them  in 


OF  MARYLAND.  121 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs — 1829. 

silver,  gold  and  Chinchilli  skins.  These  were  purchased  with 
Pawson's  funds,  because  the  previous  investment  of  all  Don- 
nelVs,  according  to  his  orders,  left  no  other  funds  but  those  of 
Pawson  fy  Goddard  at  their  disposal;  and  the  attempt  to  throw 
the  loss  of  the  gold  on  Donnell,  as  if  it  had  been  his,  is  one  of 
which  the  justice  has  not  yet  been  shewn. 

On  what  ground  is  the  attempt  placed  ?  The  counsel  say 
that  Edwards  fy  Stewart  bought  the  gold  for  Donnell;  and  what 
is  their  proof?  It  is  this : 

"  The  gold  is  invoiced  as  DonnclVs;  it  is  put  on  board,  and 
a  bill  of  lading  taken  for  Donnell.  The  silver,  on  the  contrary, 
is  invoiced  as  Pawson's,  and  put  on  board  as  Pawson's,  as  per 
bill  of  lading." 

The  distribution  thus  made  by  Edwards  fy  Stewart  is  treated 
as  a  judicial  sentence  by  these  gentlemen,  on  the  rights  of  the 
parties. 

There  would  be  a  little  more  colour  for  this,  if  those  gentle- 
men had  professed  to  have  acted  with  full  information,  and  to 
have  intended  to  decide  on  ttie  rights  of  the  parties.  Even  then, 
however,  we  might  have  objected  to  their  authority  to  settle 
the  rights  of  Donnell  by  their  arbitrament,  no  such  authority 
having  ever  been  communicated  to  them. 

But  there  is  no  occasion  to  take  this  ground ;  for  those  gen- 
tlemen never  did  profess  to  act  as  agents  for  the  respective 
parties ;  or  to  judge  of  their  claims,  or  to  make  a  final  distribu- 
tion and  adjustment  of  their  respective  riglits. 

On  the  contrary,  in  their  letter  of  19th  January,  1821,  they 
expressly  disclaim  any  purpose  of  deciding  between  Pawson 
and  Donnell.  They  profess  their  want  of  sufficient  information 
to  guide  them.  They  do  not  even  dare  to  follow  out  what  they 
believe  to  be  Pawson's  intentions.  If  they  had,  they  would  have 
invested  the  whole  of  his  funds,  (after  the  1 50  quintals  of  cop- 
per,) in  silver  bars  and  Chinchilli  skins.  But  even  this,  they  do 
not  venture  to  do.  They  prefer,  they  say,  passing  the  whole  of 
Pawson's  balance  to  Donnell ;  leaving  it  to  him  to  settle  with 
Pawson's  representatives  in  the  manner  he,  Donnell,  might  think 
most  just  and  equitable. 
VOL.  1—16. 


K>>          CASES  IN  THE  COURT  OF  APPEALS 

Pmwson's  Adm'rs  rs.  Donnell.     Donnrll  r».  Pawson's  Adm'rs — 1829. 

Again  in  their  letter  of  the  28th  January,  1821,  they  apolo- 
gize for  the  manner  in  which  they  had  shipped  these  articles — 
thrir  \v<>nl<  ;ire  "  \\c  have  only  to  beg  you  to  call  to  mind,  in  case 
that  every  thing  is  not  exactly  correct,  the  disadvantages  we  have 
been  under  from  the  sudden  death  of  Captain  Pawson" 

1  \<  re,  then,  is  a  strange  attempt  to  attach  to  the  acts  of  these 
gentlemen,  a  consequence  which  they  themselves  never  dream- 
ed of  attaching  to  them,  and  while  they  declare  that  they  are  act- 
ing by  conjecture,  in  the  necessity  thus  thrown  upon  them  by  the 
sudden  death  of  Pawson,  and  while  they  also  declare  that  their 
purpose  is  to  refer  every  thing  to  DonneWs  knowledge  of  the 
rights  of  the  parties,  because  of  his  better  knowledge  of  these 
rights,  the  court  are  called  upon,  in  the  teeth  of  this  declaration, 
to  consider  these  gentlemen  as  acting  with  full  light  and  with 
full  power,  and  as  intending  to  make  a  final  and  judicial  dispo- 
sition of  this  subject  between  Donnell  and  Pawson. 

Let  us  proceed  a  step  farther.  Let  us  impute  to  these  gen- 
tlemen, a  purpose  which  it  is  manifest  they  never  entertained, 
to  decide  upon  the  rights  of  these  parties.  What  was  their  pow- 
er; what  their  real  situation? 

These  gentlemen  had  been  appointed  by  Pawson,  in  his  life- 
time, to  purchase  the  copper  for  the  Chesapeake.  (See  his 
letter  to  them,  of  the  19th  August,  1820.) 

In  his  letter  of  September  4th,  1820,  to  Donnell,  he  informs 
him  he  had  so  appointed  them  to  purchase  the  Chesapeake^ 
cargo. 

Pawson,  then,  was  the  agent  of  Donnell,  acting  under  written 
instructions  to  which  he  had  assented.  Edwards  fy  Stewart 
were  his  sub-agents  in  executing  the  duties  confided  to  him  by 
Donnell.  They  were,  then,  employed  by  him  in  executing 
those  duties,  under  this  sub-delegation  of  pmcer,  and  under  his 
superintendance.  Their  whole  poicer  was  derived  from  Pawson's 
appointment;  and,  consequently,  the  limits  of  Pawson's  power, 
marked  the  limits  of  theirs  with  regard  to  Donnell  For 
Pawson  could  not  delegate  to  them  a  power  whicii  he  did  not  him- 
self possess.  But  he,  Pawson,  had  no  pmccr  to  buy  gold  for 


OF  MARYLAND.  123 


Pawson's  Adm'rs  vs.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

Donnell ;  and  tJicrcfore,  he,  could  delegate,  none  such  to  Edwards 
4"  Stewart. 

During  Pawson's  life,  they  were  acting  under  his  superior  and 
controlling  authority.  The  acts  done  during  Pawson's  life  were 
conclusive,  as  between  him  and  Donncll.  The,  rights  acquired 
by  Donnell  under  these  acts,  during  Pawson's  life,  were  vested 
rigJits,  which  could  not  be  divested  by  Pawsorfs  successor  and  sub- 
dekgale.  The  copper  already  purchased  was  DonneWs,  and  at 
his  risk.  Edwards  8f  Stewart  if  they  liad  so  wislied,  could  not 
have  altered  this  state  of  things.  But  it  is  clear  that  they  never 
proposed  it ;  never  thought  of  such  a  cfiange. 

Yet,  without  the  power  and  without  the  intention  to  make 
any  such  change ;  declining  all  interference  themselves,  and  re- 
ferring all  to  the  decision  of  Donnell,  their  acts,  avowedly  with 
a  different  aspect,  are  supposed  to  have  changed  the  title  which 
was  vested  in  Donnell,  during  the  life  of  Pawson,  and  vested 
by  Pawsorfs  own  avowed  intention  and  acts. 

One  of  the  learned  counsel  has  talked  of  DonneWs  specific 
doubloons  having  been  invested  in  this  purchase.  What  a  no- 
tion is  this  of  an  ear-mark  in  money !  Pawson  held  the  whole  of 
DonneWs  funds,  and  they  were  in  the  hands  of  Pawson,  blended 
with  his  own.  Whether  in  doubloons  or  bank  notes,  or  govern- 
ment paper,  they  became  one  mass  in  the  hands  of  Pawson. 
They  were  placed  by  him  in  the  hands  of  Edwards  8f  Stewart 
to  make  all  the  purchases,  DonneWs  and  his  own.  Their  de- 
posite  with  Edwards  ^  Stewart  made  them  their  funds.  They 
were  DonneWs  no  longer.  They/  were  the  property  of  Ed- 
wards &f  Stewart,  and  they  were  responsible  to  Pawson  for 
all  the  funds  placed  in  their  hands.  The  application  of  the 
whole  mass  of  these  funds  was  under  the  direction  of  Pawson, 
during  his  life  ;  and  whenever  he  ordered  a  purchase  it  is  per- 
fectly immaterial  to  this  question,  whether  Edwards  fy  Stewart 
used  these  donbloons,  or  any  other  portion  of  their  own  funds. 

It  is,  respectfully,  submitted  to  the  court,  that  the  several 
Opinions  of  the  court  below,  on  this  point,  were  perfectly  cor- 
rect. 


I  M          CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  t>j.  Donnell.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 

Tancy  (attorney  general)  in  reply. 

The  only  question  in  controversy  in  the  appeal  now  under 
cituswlrration,  is  the  gold  and  silver  shipped  at  Gtutsco,  and 
sri/ed  and  confiscated  by  the  Spanish  authorities.  Three  of  the 
bills  of  exceptions  taken  at  the  trial  all  relate  to  this  subject. 

The  ship  arrived  at  Coquimbo,  August  15,  1820,  and  sailed 
from  that  place  for  Guasco,  January  19,  1821.  Pawson  died 
at  Coquimbo,  December  4,  1820. 

It  appears,  therefore,  that  the  silver  and  gold  in  controversy 
was  shipped  after  the  death  of  Pawson,  and  at  a  port  which  he 
did  not  live  to  reach.  It  does  not  appear  that  any  part  of  the 
silver  was  purchased  in  his  lifetime ;  and  it  is  positively  proved 
that  the  gold  was  purchased  after  his  death. 

Patrson  had  under  his  separate  control  his  own  individual 
adventure,  and  also  the  funds  belonging  to  Goddard,  arising 
from  the  sale  of  the  cordage.  The  appellants  are  willing  to 
consider  the  silver  to  have  been  bought  with  the  funds  under 
the  separate  control  of  Pawson,  and  the  gold  on  account  of 
Donnell,  and  propose  that  the  loss  shall  be  borne  accordingly. 

But  Donnell  insists  that  neither  the  silver  nor  the  gold  be- 
longed to  him;  and  that  no  part  of  the  loss  of  either  can  fall 
on  him.  The  ownership  of  the  gold,  seized  by  the  Spanish 
government,  is  therefore  the  point  in  dispute  between  the  par- 
ties. 

The  statement  in  the  record  shews  that  both  Donnell  and 
Pawson  had  funds  in  Chili,  in  the  hands  of  Edwards  fy  Stewart, 
at  the  time  they  purchased  the  gold.  It  moreover,  appears,  in 
proof  that  the  funds  of  Donnell  were  in  fact  employed  in  this 
purchase,  and  not  the  funds  of  Pawson.  But  it  is  said  on  be- 
half of  Donnell,  that  his  funds  could  not  rightfully  be  so  em- 
ployed; and  that  if  they  were  so  used,  it  was  a  violation  of  the 
instructions  given  to  Pawson,  which  instructions  bound  the  funds 
in  the  hands  of  Edwards  fy  Stewart. 

We  do  not  mean  to  contend  that  the  death  of  Pawson  alter- 
ed, in  any  respect,  the  rights  of  the  parties.  We  admit  that 
the  funds  of  Pawson  in  the  hands  of  Edwards  fy  Stewart  had  no 


OF  MARYLAND.  125 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adm'rs. — 1829. 

greater  privileges,  than  they  had  in  his  own  hands.  The  first 
question,  therefore,  to  be  decided  is,  what  were  the  powers  and 
duties  of  Pawson,  under  the  authority  and  instructions  received 
by  him  from  Donnell?  And  this  leads  us  to  consider,  in  the 
first  place,  the  question  presented  by  the  second  exception. 

In  this  investigation  we  do  not  mean  to  consider  the  intentions, 
which  Pawson  is  supposed  to  have  entertained.  They  will  be 
examined  in  a  subsequent  part  of  this  argument.  The  object 
now  is  to  ascertain  the  rights  of  the  parties;  and  when  this  is 
done  it  will  not  be .  difficult  to  decide,  how  far  the  rights  of 
Pawson  can  be  affected  by  any  designs  which  he  formed  in  his 
life  time,  but  which  he  did  not  live  to  carry  into  execution. 

In  the  second  exception,  the  County  Court  have  decided  that 
it  was  the  duty  of  Pawson  to  invest  all  DonnelVs  funds  in  Chili 
in  copper,  if  copper  could  be  had ;  that  Pawson  could  not,  con- 
sistently with  his  duty,  put  on  board  any  copper  on  his  own  ac- 
count, while  he  had  funds  of  Donnell  under  his  control,  which 
could  be  applied  to  that  .purpose;  that  if  DonnelVs  funds  in 
Chili  were  sufficient  to  load  the  ship  with  copper,  that  no  cop- 
per could  be  put  on  board  for  Pawson  or  any  one  else;  that  if 
copper  enough  was  put  onboard,  sufficient  to  exhaust  the  funds 
of  Donnell,  no  other  part  of  the  cargo  would  belong  to  him ; 
and  consequently  that  he  could  not  be  affected  by  the  loss  or 
seizure  of  the  silver  or  gold.  This  is  understood  to  be  the 
opinion  of  the  court,  set  forth  in  the  second  exception. 

This  opipion  of  the  court  denies  that  Pawson  had  any 
license  or  permission  from  DonneU  to  bring  copper  from  Chili 
to  Baltimore,  provided  DonnelVsf  funds  were  sufficient  to  load 
the  ship.  It  denies  also  that  Pawson  had  any  privilege  from 
Chili  to  Baltimore. 

When  we  speak  of  the  privilege  of  Pawson,  we  mean  that 
kind  of  privilege  which  is  described  by  the  testimony.  A  cap- 
tain's privilege  in  the  sense,  in  which  it  is  there  spoken  of,  is 
not  a  mere  permission,  revocable  at  the  will  of  the  owner,  but 
is  an  absolute  and  vested  right  to  a  certain  portion  of  the  ship, 
secured  to  him  by  his  contract  with  the  owner.  This  portion 
the  captain  may  either  use  himself,  or  let  out  for  hire  to  others, 


KH»         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  t»s.  Donncll.     Donncll  vs.  Pawson's  Ailm'rs. — 1829. 

and  the  owner  himself  must  pay  for  it  if  he  uses  it.  Such  was 
the  character  of  the  privilege  from  Canton,  as  appears  by  the 
testimony  in  the  record. 

It  will  be  found,  upon  recurring  to  the  exceptions  and  argu- 
ments in  the  other  appeal  between  the  same  parties,  that  it  was 
in  that  case  strongly  urged  on  behalf  of  Donncll,  that  Pawson 
had  a  certain  privilege  in  copper  from  Chili  to  Baltimore;  and 
that  this  privilege  had  been  substituted  by  the  consent  of  par- 
ties for  the  one  from  Canton.  The  privilege  from  Chili,  there- 
fore, was  supposed  to  be  one  of  the  same  character  with  that 
from  Canton,  for  which,  it  was  insisted  on  the  part  of  Donncll, 
the  privilege  from  Canton  had  been  exchanged. 

If  the  counsel  for  Donnell  were  right  in  the  argument  just 
stated,  then  the  opinion  of  the  County  Court,  given  upon  their 
prayer  in  the  exception  now  under  discussion,  must  necessarily 
be  wrong.  For  if  Pawson  had  a  substituted  privilege  from 
Chili  to  Baltimore,  he  had  a  right  to  bring  home  copper,  or  any 
thing  else,  to  the  extent  of  that  privilege,  although  DonneWs 
funds  were  not  exhausted.  But  in  this  prayer  they  insist  that 
he  had  no  such  privilege;  that  he  could  use  no  portion  of 
the  ship  for  his  own  goods,  until  the  whole  of  DonmlVs  funds 
were  invested  in  copper,  and  shipped  on  board  this  vessel ;  that 
he  might  then  use  any  space  which  happened  to  be  left,  and  if 
none  was  left  he  could  ship  nothing.  The  position  taken  in  the 
other  case  is  inconsistent  with  the  one  they  now  maintain.  If 
they  were  right  in  that  case,  they  must  be  wrong  in  this. 

It  is  not,  however,  contended  on  the  part  of  Pawson's  repre- 
sentatives, that  he  had  any  privilege  (in  the  sense  in  which  that 
word  is  used  in  the  record)  from  Chili  to  Baltimore.  We  in- 
sist now  as  we  did  in  the  other  appeal,  that  the  privilege  from 
Canton  was  neither  forfeited  nor  waived;  that  no  privilege 
from  Coquimbo  or  elsewhere  was,  by  the  consent  of  parties, 
substituted  in  its  place.  But  that  Paicson  had  permission  from 
Donncll  to  bring  home  from  Chili  the  whole  of  his  funds  in  any 
thing  he  pleased,  in  copper  as  well  as  in  any  other  article. 
We  do  not  say  that  he  was  entitled  to  do  this,  without  paying- 
freight  If  he  used  any  part  of  the  ship  under  this  permission, 


OF  MARYLAND.  127 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

he  was  unquestionably  bound  to  pay  freight.  Because  as  this 
permission  formed  no  part  of  the  compensation  of  Pawson, 
there  could  be  no  reason  for  allowing  him  to  exclude  the  goods 
of  the  ship-owner  for  his  own  benefit,  without  paying  the  usual 
compensation.  Pawson's  recompense  for  his  services  depended 
upon  the  original  agreement  between  the  parties — that  is — the 
shipping  articles,  and  the  letter  of  Novembers,  1819.  And 
the  permission,  for  which  we  now  contend,  is  neither  the  privi- 
lege secured  by  that  contract,  nor  any  other  privilege  substi- 
tuted for  it ;  but  is  a  separate  and  distinct  permission  given 
afterwards, — and  given  not  by  way  of  bargain — but  by  way  of 
voluntary  license; — and  which  being  once  executed,  cannot 
afterwards  be  revoked.  This  is  the  character  of  the  permis- 
sion for  which  we  contend.  And  we  proceed  to  enquire, 
whether  he  had  a  permission  or  license  of  this  character,  or 
whether,  as  the  County  Court  have  said,  he  had  no  right  to 
bring  home  any  part  of  his  own  funds  in  copper,  unless  there 
was  space  left  in  the  ship,  after  DonnelVs  funds  had  been  ex- 
hausted in  the  purchase  of  that  article. 

The  argument  upon  this  point  is  necessarily  very  brief.  It 
depends  upon  the  construction  of  DonnelVs  letter  of  December 
26,  1819.  This  is  a  written  instrument  and  must  speak  for 
itself,  and  its  true  meaning  be  declared  by  the  court.  It  is  this 
paper  that  broke  up  the  original  voyage,  and  directed  the  new 
one.  And  it  prescribes  what  is  to  be  done  in  the  new  one. 
In  this  letter,  Donnell  says, — "  as  relates  to  the  investment  and 
disposal  of  your  own  funds,  you  must  use  your  own  discre- 
tion, by  investing  it  in  copper  or/any  thing  eZse,  and  bringing  it 
with  you  in  tJie  ship; — the  copper  may  (as  I  hope  it  will)  be 
bought  on  terms  that  will,  with  my  funds  and  yours,  load  the 
ship  very  deep,  but  if  necessary  you  must  load  her  very 
deep,"  &c. 

Argument  can  scarcely  assist  the  court  in  fixing  the  true  con- 
struction of  this  letter.  The  permission  to  Pawson  is  express  to 
invest  his  funds  in  copper  or  any  thing  else,  and  bring  it  with 
him  in  the  ship.  It  is  not  a  contingent  permission,  depending 
upon  DonneWs  funds  loading  or  not  loading  the  ship.  It  is  not 


128         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vt.  Donncll.     Donnell  rs.  Pawson's  Adm'rs — 18529. 

a  permission  to  bring  a  part  of  his  funds  in  copper  in  the  ship — 
nor  to  fill  up  any  particular  space.  Donnell  knew  the  amount 
of  Pairson's  funds — for  he  had  given  him  the  bill  on  Horstman: 
(see  letter  from  W.  F.  Itcus,)  and  with  this  knowledge  he  gives 
to  him  the  unqualified  permission  to  bring  home  in  the  ship  in 
copper,  or  any  thing  else,  the  whole  amount  of  his  funds. 

If,  therefore,  this  permission  be  an  absolute  privilege,  sub- 
stituted for  the  Canton  privilege  by  the  consent  of  parties,  as 
has  been  on  another  occasion  contended  for  by  Donncll,  then 
this  opinion  of  the  court,  which  makes  it  a  mere  contingent 
permission,  cannot  be  supported.  If  it  be  an  absolute  and 
unconditional  license,  to  be  used  by  Pawson  at  his  discretion, 
as  we  contend,  and  as  the  words  of  the  letter  seem  necessarily 
to  import,  then  it  is  equally  clear  that  this  opinion  of  the  court 
cannot  be  maintained.  In  either  view  of  the  subject,  therefore, 
the  judgment  must  be  reversed,  unless  there  be  something  in 
the  conduct  or  letters  of  Pawson,  which  may  give  to  the  case  a 
new  aspect. 

We  cannot  imagine  how  any  thing  contained  in  the  letters  of 
Pawson  can  be  relied  on  to  support  this  opinion  of  the  County 
Court.  The  court  have  said,  that  he  had  no  right  to  ship  any 
copper  on  his  own  account,  provided  DonneWs  funds  would 
buy  copper  enough  to  load  the  ship.  We  say,  on  the  contrary, 
that  he  had  permission  from  Donnell  to  bring  home  the  whole 
of  his  funds  in  coppef,\jf  in  his  discretion  he  thought  proper 
to  do  so.  And  we  produce  the  letter  of  Donnell  giving  this 
permission  in  so  many  words.  Now,  whether  Pawson  had  or 
had  not  this  permission,  must  depend  upon  the  language  used  by 
Donnell,  and  not  upon  language  used  by  Pawson.  Donnell 
alone  could  give  the  permission ;  Pawson  could  not  assume  it. 

It  is  true  that  Pawson  might,  in  his  discretion,  refuse  to  ex- 
ercise the  permission  given.  But  if  he  had  even  done  so  in 
express  words,  it  would  not  support  the  opinion  contained  in 
tliis  exception.  The  point  presented  is — had  Pawson  the  right, 
under  the  permission  given  by  Donnell,  to  bring  home  his 
funds  in  copper,  if  he  thought  proper  to  do  so.  The  court 
say  he  had  not  the  right.  And,  in  discussing  this  question,  it 


OF  MARYLAND.  129 

Pawson's  Adm'rs  vs.  Donnell.     Donneil  us.  Pawson's  Adtn'rs 1829. 

can  make  no  difference  how  far  he  exercised  it,  or  how  far  he 
intended  to  exercise  it.  The  question  is,  did  he  possess  the 
right,  if  he  thought  proper  to  exercise  it.  He  may,  in  his  dis- 
cretion, have  determined  not  to  use  the  permission  to  the  full  ex- 
tent, nor  even  in  a  small  degree.  Yet  that  would  not  destroy 
his  right  to  use  it.  The  right  would  still  exist,  although  Paw- 
son  did  not  choose  to  avail  himself  of  it.  And,  in  order  to  sup- 
port this  opinion  of  the  County  Court,  Donnell  must  shew,  not 
how  Pawson  used  his  discretion,  but  that  he  had  no  discretion 
to  exercise.  And,  whether  he  had  or  had  not  the  power  to  ex 
ercise  any  discretion  on  the  subject,  must  depend  on  the  letters 
of  Donnell,  who  alone  could  confer  or  withhold  the  power. 

We  cannot,  therefore,  perceive  how  Pawson's  letters,  detail- 
ing what  he  had  done  or  intended  to  do,  can  affect  this  ques- 
tion. It  is  not  suggested  that  in  any  of  his  letters  he  has  ad- 
mitted that  Donnell  recalled  the  permission,  given  by  his  se- 
cond letter.  And,  unless  the  letters  of  Pawson  contained  this 
admission,  it  is  not  easy  to  discover  in  what  other  way  they 
could  prove  that  the  right,  which  had  been  vested  in  him  by 
the  license  of  Donnell,  had  afterwards  been  extinguished.  Any 
declarations  which  may  have  been  made  by  Pawson,  as  to  the 
manner  in  which  he  intended  to  use  the  discretionary  power 
confided  to  him  by  Donnell,  would  not  be  binding  on  him, 
nor  limit  the  range  of  his  power.  Every  intention  entertained 
or  expressed  would  be  liable  to  alteration,  as  the  business  ad- 
vanced, and  at  any  time  before  he  had  acted.  In  stating  this 
position,  however,  we  shall  not  be  understood  to  mean,  that 
after  Pawson  had  actually  purchased  copper  on  account  of 
Donnell,  he  could  convert  it  to  his  own  use,  and  ship  it  on  his 
own  account.  This  we  admit  could  not  be  done.  When  he 
had  once  purchased  copper  for  Donnell,  he  had  then  exercised 
the  discretion  with  which  he  was  entrusted,  and  the  copper 
would  remain  DonnelVs,  and  must  be  shipped  as  his  property. 
But  we  insist  that  lie  had  the  right,  instead  of  purchasing  for 
Donnell,  to  purchase  copper  for  himself  to  the  amount  of  his 
own  funds,  and  that  this  power  remained  until  he  acted,  and  by 
purchasing,  either  for  himself  or  Donnell,  exercised  the  discre- 
VOL.  1—17. 


CW         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vt.  Donncll.     Donncll  vs.  Pawson's  Adiu'rs. — 1829. 

tion,  anil  put  an  end  to  the  power.  When  we  speak  here  of 
Pavsott's  funds,  we  must  not  be  understood  to  include  the  pro- 
ceeds of  Goddard's  cordage. 

If,  however,  we  look  at  the  intentions  of  Pawson,  as  express- 
ed in  his  letters,  or  disclosed  in  the  letters  of  Edwards  fy  Stewart, 
nothing  will  be  found  to  sanction  the  opinion  which  the  court 
have  expressed.  He  uses  no  expression  which  indicates  a  be- 
lief on  his  part,  that  he  was  obliged  to  exhaust  DonnelVs  funds 
in  copper  before  he  could  ship  a  single  pound  for  himself,  as 
the  County  Court  have  decided.  On  the  contrary,  if  you  re- 
sort to  his  own  letters,  or  those  of  Edwards  fy  Stewart,  he  does 
not  appear  to  have  doubted  that  he  had  a  right  to  ship  a  large 
amount  of  copper.  How  much  he  supposed  himself  entitled  to 
bring  in  this  vessel  does  not  appear.  But  it  is  abundantly  evi- 
dent that  he  considered  it,  in  a  great  measure,  as  a  matter  rest- 
ing in  his  discretion ;  and  upon  which  he  intended  to  decide, 
when  he  had  more  certainly  ascertained  how  much  could  be 
brought.  It  seems  never  to  have  been  supposed  by  him  that 
his  right  to  bring  any  was  altogether  contingent,  and  depended 
upon  the  ability  of  the  ship  to  bear  it,  after  all  DonnelVs  funds 
had  been  first  so  disposed  of.  On  the  contrary,  he  never  seems 
to  doubt  his  right — he  doubts  only  to  what  extent  he  will  use  it. 
See  his  ktter  to  Donnell,  dated  November  4,  1 820 — and  the  letter 
of  Edwards  fy  Stewart,  dated  January  19,  1821. 

It  is  very  certain,  if  Pawson  had  lived,  he  would  have  used 
the  permission  given  by  Donnell  very  sparingly.  He  had  the 
strongest  inducements  not  to  displease  Donnell.  He  was  in  his 
employment.  And  Donnell  was  a  man  of  vast  wealth — exten- 
sively engaged  in  commerce— who,  we  admit,  paid  his  agents 
liberally  while  they  lived,  and  were  useful  to  him ;  and  with 
whom,  therefore,  Pawson  would  naturally  wish  to  stand  well, 
and  be  most  careful  not  to  offend.  Besides,  he  acted  under  the 
influence  of  higher  and  better  feelings.  He  was  the  trusted 
agent  of  Donnell,  and  as  such  seems  upon  all  occasions  to  have 
preferred  the  interest  of  his  principal  to  his  own.  This  was 
obviously  the  case  in  the  purchase  of  gold  in  London ;  and  it  is 
equally  manifest  from  his  own  letters,  and  the  letters  of  Edwards 


OF  MARYLAND.  131 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

Of  Stewart,  that  he  was  prepared  again  to  surrender  what  he  be- 
lieved to  be  his  rights,  in  order  to  advance  the  interest  of  Don- 
nell:— that  he  had  determined,  in  his  own  language,  to  curtail 
his  privilege  in  copper ; — that  is — to  take  less  than  what  he  had 
a  right  to  take,  in  order  more  effectually  to  serve  Donnell. 
We  admit  most  distinctly,  that  if  he  had  lived,  he  would  have 
waived  his  own  rights  in  favor  of  his  principal;  and  it  was  his 
intention  to  do  so. 

But  we  are  not  now  to  inquire  what  rights  Pawson  intended 
to  waive,  or  what  he  intended  to  insist  on.  It  is  our  business  to 
ascertain  what  were  his  rights ;  and  whatever  rights  he  had  at 
the  time  of  his  death,  it  is  the  duty  of  his  representatives  to 
maintain,  although  we  may  even  be  satisfied  that  he  himself  in- 
tended to  surrender  them,  if  he  had  lived.  If  the  right  was  not 
actually  surrendered,  it  belongs  to  the  representatives ;  for  they 
can  have  none  of  those  inducements  to  waive  them,  which  might 
very  properly  have  operated  on  the  mind  ofPaivson. 

We  have  already  endeavoured  to  show  the  character  and 
extent  of  these  rights,  and  hope  v»e  have  established  the  follow- 
ing propositions : 

1st.  That  DonndVs  letter  of  December  26,  1819,  gave  to 
Pawson  permission  to  bring  home  his  whole  funds  in  copper,  if 
he  thought  proper  to  do  so. 

2d.  That  this  privilege  had  never  been  recalled  by  Donnell, 
nor  surrendered  by  Pawson. 

Assuming  these  two  propositions,  let  us  in  the  next  place  see 
what  were  the  rights  of  the  respective  parties,  when  adjusted 
according  to  these  principles.  / 

Pawson  had  the  right,  under  the  license  given  by  Donnell, 
to  invest  his  own  funds  in  copper  in  preference  to  DonneWs, 
and  bring  the  copper  home  in  the  ship.  It  was  also  the  duty 
of  Pawson,  under  his  instructions,  to  invest  DonneWs  funds  in 
that  article,  provided  the  ship  would  bring  it,  together  with  his 
own.  But  if  the  funds  of  both  would  overload  the  vessel,  Paw- 
eon  was  without  orders  in  that  contingency ;  and  consequently 
was  left  to  exercise  a  sound  discretion,  as  to  the  manner  in 
trhich  the  surplus  funds  of  Donnell  should  be  invested. 


I  ;  >          CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  M.  Dunm-ll.     Domioll  rs.  Pawson's  Adm'rs — 1829. 

In  this  state  of  things  it  must  be  conceded  on  all  hands,  that 
whenever  Patcson  bought  copper  for  Dannell,  and  with  Don- 
tieWs  funds,  the  copper  became  his  property,  and  could  not 
afterwards  be  appropriated  by  Pairson  to  his  own  use,  if  he  had 
been  so  disposed.  And  whenever  he  bought  copper  for  his 
own  use,  and  with  his  own  funds,  the  copper  belonged  to  him, 
and  could  not  become  DonnelVs  unless  it  was  transferred  to 
him  by  his  own  consent,  as  well  as  that  of  Pawson.  For  Pair- 
son  had  a  right  so  to  invest  the  funds  of  either  party ;  and  when 
the  investment  was  once  made  by  him,  he  could  not  of  himself 
recall  it.  And  indeed  any  other  rule  would  have  been  liable  to 
great  objections.  Because,  although  copper  was  the  favourite 
article,  and  preferred  by  both  parties,  yet  as  it  was  not  all 
bought  at  once,  but  in  different  lots,  the  price  wras  subject  to  va- 
riation, and  he  might  have  been  obliged  to  give  for  some  par- 
cels more  than  he  had  given  for  others ;  and  it  becomes  impor- 
tant, therefore,  to  fix  at  once  for  whom  the  purchase  was  made. 
Besides,  although  copper  proved  the  most  fortunate  cargo,  it 
might  have  happened  otherwise ;  and  if  it  had  come  to  a  losing 
market,  and  the  gold  and  silver  arrived  safe,  the  latter  articles 
might  have  proved  the  best  investment.  In  every  viewr,  there- 
fore, the  purposes  of  justice  required  that  when  the  discretion 
was  exercised,  and  the  purchase  made  by  the  funds  of  one  of 
the  parties,  the  article  purchased  should  become  at  once  the 
property  of  him  for  whose  use  it  was  bought,  and  should  not 
afterwards  be  transferred  to  the  other,  without  the  consent  of 
both  parties. 

Assuming  this  to  be  the  true  principle,  let  us  look  at  the  state 
of  the  funds  at  the  time  of  Pawson's  death,  and  what  was  done 
with  them  afterwards.  And  this  brings  up  the  question  in  the 
first  exception. 

On  the  4th  of  November,  1820,  Patoson'had  bought  for  J)on- 
nell  9500  quintals,  nearly  7000  of  which  was  then  on  board  at 
Coquimbo,  and  the  remainder  at  Guasco,  to  which  place  the 
Chesapeake  afterwards  intended  to  sail.  (See  Pawson's  letter.}  So 
far  we  have  an  actual  appropriation  of  DonnelVs  funds.  But 
we  have  no  other  appropriation  during  his  life,  and  no  evidence 


OF  MARYLAND.  133 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  us.  Pawson's  Adm'rs 1829. 

that  any  more  copper  was  purchased  by  him.  A  large  amount 
of  copper  was  afterwards  bought  at  Coquimbo.  For  it  appears 
by  the  bill  of  lading,  that  instead  of  the  "nearly  7000  quintals" 
at  Coquimbo,  mentioned  in  Pawson's  letter  of  November  4, 1820, 
as  purchased  and  shipped  there  for  Donnell,  there  was  in  fact, 
8076  quintals  and  some  pounds  shipped  from  Coquimbo.  And 
there  is  no  evidence  to  show  for  whom  the  additional  1076 
quintals  were  bought ;  nor  indeed  any  thing  to  show  whether 
it  was  bought  in  Pawson's  life  time,  or  after  his  death.  The 
9500  quintals,  bought  for  Donnell,  did  not  exhaust  bis  funds; 
it  left  between  six  and  seven  thousand  dollars  of  DonneWs 
funds  unappropriated ;  and  there  is  no  evidence  to  show  that 
the  additional  quantity  of  copper  was  bought  for  him,  or  with 
his  funds ; — nor  that  any  further  specific  appropriation  of  the 
funds  of  Donnell  were  made  by  Pawson  in  his  life  time.  But 
whether  any  further  specific  appropriations  of  DonnelPs  funds 
were  or  were  not  made,  it  is  in  proof  that  they  were  not  all 
appropriated.  For  it  appears  by  the  testimony,  that  some  of 
DonnelPs  doubloons  brought  from  England  had  not  been  ex- 
pended in  the  purchases  ^made  for  him  by  Pawson;  and  that 
these  specific  funds  of  Donnell  were  applied  after  the  death 
of  Pawson,  and  by  the  advice  of  his  successor,  in  the  purchase 
of  the  very  gold,  which  was  afterwards  seized  by  the  Spanish 
government.  Now,  as  the  specific  funds  of  Donnell  were 
appropriated  to  the  purchase  of  this  gold,  and  it  was  bought 
on  his  account,  the  purchased  gold  belonged  to  him,  and  the 
loss  must  be  borne  by  him. 

We  have  already  endeavoured/ to  show,  that  if  the  Chesa- 
peake would  not  bring  all  Pawsbn's  funds  in  copper,  and  all 
DonnelVs  funds  also,  that  as  Pawson  had  no  specific  directions 
how  to  dispose  of  DonneWs  surplus  funds,  he  had  a  right  to  ex- 
ercise a  sound  and  honest  discretion  on  the  subject,  and  might 
invest  them  in  any  article  he  deemed  best.  He  died,  leaving 
funds  of  his  own  and  funds  of  Donnell,  also  unappropriated. 
The  money  of  both  of  them  came  to  the  hands  of  persons 
who  had  no  instructions,  from  either  Pawson  or  Donnell,  and  no 
authority  from  either  of  them.  Neither  Lane,  nor  Edwards  fy 


I-U         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Ailin'r*  r>.  l)..mifll.     Donnrll  vt.  Pawson's  Ailm'rs. — 1829. 

Stewart,  in  whose  hands  these  funds  remained,  were  appointed 
th<>  agents  of  Donnell,  or  the  agents  of  Pawson.  In  this  state 
of  things  the  money  was  in  their  hands  in  the  same  condition, 
and  suhjectto  the  same  rights,  as  when  it  remained  in  the  hands 
of  Pawson.  Edwards  <$•  Stncart,  who  held  the  funds,  became 
trustees  for  the  respective  parties,  according  to  the  amount  of 
their  respective  funds,  and  according  to  their  respective  rights 
of  investment  and  shipment.  And  when  the  funds  of  either 
party  were  invested  in  a  particular  article,  that  article  became 
the  property  of  the  party  whose  fund  was  used  in  the  purchase. 
The  thing  purchased  belonged  to  him,  and  could  not  be  claimed 
by  the  other.  And  if  it  were  lost  or  destroyed,  he  could  not 
put  that  loss  on  the  other  party.  If  indeed  the  trustee  had 
misbehaved  himself  in  the  purchase,  and  a  loss  had  thereby  hap- 
pened, the  party  injured  would  have  been  entitled  to  demand 
compensation  of  the  faithless  trustee.  But  nobody,  under  such 
circumstances,  could  have  acted  more  discreetly  or  honestly, 
than  Edwards  fy  Stewart.  There  is  no  pretence  of  complaint 
against  them.  But  whether  Donnell  had,  or  had  not  cause  of 
complaint  against  them  would  not  have  altered  the  case.  The 
funds  were  in  the  hands  of  Edwards  fy  Stewart,  precisely  as 
they  had  been  in  the  hands  of  Pawson.  The  funds  of  Pawson 
had  an  absolute  right,  derived  from  Donnell,  to  be  invested  in 
copper,  and  brought  home  in  the  ship.  The  funds  of  Donnell 
had  a  right  to  be  invested  in  the  same  article,  if  the  ship  would 
bear  it  But  if  the  ship  would  not  bear  it,  the  surplus  might  be 
invested  in  any  manner  that  the  sound  discretion  of  the  agent 
would  justify.  These  were  the  rights  of  the  parties  while 
Pawson  lived,  and  the  funds  were  in  his  hands.  Uj>on  his  death, 
the  funds  in  the  hands  of  Edwards  fy  Stewart  were  liable  to  the 
same  appropriation,  and  subject  to  the  same  rights;  and,  by  the 
hands  of  Edwards  fy  Stewart,  the  surplus  funds  of  Donnell  have 
been  specifically  appropriated  to  the  purchase  of  the  gold. 
This  appropriation  would  have  been  a  lawful  one  by  Pawson  : 
it  was  equally  so  when  made  by  Edwards  fy  Stewart.  If  the 
shipment  had  proved  fortunate,  Donnell  would  have  had  a  right 
to  hold  it,  in  opposition  toPawson's  representatives;  and  as  it  has 


OF  MARYLAND.  135 


Pawson's  Adm'rsus.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

proved  to  be  unfortunate,  he  cannot  throw  the  loss  upon  them. 
It  is  unnecessary  to  cite  many  cases  on  this  subject.  Taylor  vs. 
Plumer,  3  Maul,  and  Selw.  574,  is  in  point.  In  page  575,  it  is 
said  "  the  product  of,  or  substitute  for,  the  original  thing  still  fol- 
lows the  nature  of  the  thing  itself,  as  long  as  it  can  be  ascertain- 
ed to  be  such."  The  gold  in  question  was  "the  product  of,  or 
substitute  for,"  the  doubloons  of  Donnell.  He  clearly  had  a 
right  to  follow  the  gold  bought,  and  to  claim  it  to  the  exclusion 
of  Pawson;  and  it  would  be  contrary  to  every  notion  of  justice 
to  give  him  the  right  to  it,  if  it  was  found  to  be  profitable,  and 
enable  him,  if  unfortunate,  to  throw  the  loss  on  Pawson.  If  he 
takes  it  all,  he  takes  it  for  better  or  for  worse.  And  if  he  has 
been  wronged  in  the  purchase,  it  was  not  by  Pawson,  for  he 
died  before  the  purchase.  But  in  truth  he  has  been  wronged  by 
nobody.  The  investment  was  judicious  and  discreet  at  the 
time,  although  it  afterwards  proved  unfortunate.  And  as  it  was 
purchased  with  -his  money  it  belonged  to  him,  and  the  court 
have  therefore  erred  in  the  opinion  contained  in  the  first  excep- 
tion, as  well  as  in  that  given  in  the  second  exception,  which  was 
first  examined. 

So  far  we  have  argued  the  case  according  to  the  rights  of  the 
parties,  at  the  time  the  gold  in  question  was  purchased,  and 
without  reference  to  any  thing  that  happened  afterwards.  We 
proceed  now  to  show,  that  if  Edwards  <$<•  Stewart  had  not  pos- 
sessed the  power  to  make  this  investment  of  the  funds  of  Don- 
nell, yet  that  Donnell,  by  his  subsequent  conduct,  has  adopted 
it  and  assented  to  it,  and  cannot  now  dispute  it,  even  if  he  might 
have  done  so,  when  first  informed/of  the  transaction. 

This  point  arises  under  the  second  and  third  exceptions :  It  pre- 
supposes that  Pawson  in  his  lifetime,  and  Edwards  fy  Stewart, 
after  his  death,  had  no  right  to  invest  any  part  of  his  funds  in 
copper,  and  bring  it  home  in  the  Chesapeake,  until  DonneWs 
funds  had  been  first  exhausted  in  the  purchase  of  that  article, 
and  had  been  found  to  be  insufficient  to  load  the  ship.  But,  as- 
suming this  to  be  the  law  of  the  contract  between  Donnell  fy 
Pawson,  we  insist  that  if  Pawson  in  his  lifetime,  or  Edwards  fy 
Stewart  after  his  death,  holding  in  their  hands  the  funds  of  both 


CASES  IN  THE  COURT  OF  APPEALS 

Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

p.iriic>,  d'ul  specifically  and  separately  appropriate  them  in  any 
particular  manner,  anil  if  Donnell  and  Pawson's  representatives, 
after  notice  of  Mich  appropriations,  acquiesced  therein,  that  such 
acquiescence  will  bind  the  parties,  and  neither  of  them  could 
afterwards  reject  and  disallow  it,  without  the  consent  of  the 
other  party. 

We  have  certainly  offered  evidence  of  all  the  facts  above 
stated.  1st.  It  is  admitted  by  the  statement,  and  in  prayer  of 
the  appellee  that,  upon  the  death  of  Puwson,  a  large  proportion 
of  the  funds  of  both  parties  were  in  the  hands  of  Edwards  fy 
Stctrart. 

2d.  These  funds  were  specifically  appropriated.  The  gold 
in  question  was  purchased  with  the  money  of  Donnell,  and  ship- 
ped on  his  account.  See  where  Edicards  fy  Stewart  speak  of 
it  as  DonneWs  gold.  The  Cftinchilli  skins,  the  one  hundred  and 
forty  seven  quintals  and  seventy-nine  pounds  of  copper,  and  the 
silver  mentioned  in  the  same  bill  of  lading,  were  separately  ship- 
ped on  account  of  the  funds  under  the  immediate  control  of 

Patcson.     See  letters  of  Edicards  &•  Stewart.     Also  the  bills  of 

i 

lading.  When  we  speak  here  of  the  funds  under  the  immediate 
control  of  Pawson,  we  mean  his  own  and  Goddard's,  as  distin- 
guished from  DonneWs.  The  balance  of  Pawson's  separate  ac- 
count was  passed  to  the  credit  of  Donnell,  and  invested  for  him, 
and  shipped  on  his  account.  The  900  pigs  of  copper,  and  the 
thirty-six  lumps  of  gold  were  shipped  on  DonneWs  sole  account. 
And  it  is  distinctly  admitted  in  the  argument,  and  the  evidence 
and  figures  shew  it,  that  DonneWs  funds,  independent  of  those 
transferred  to  him  by  Edwards  fy  Stewart,  would  not  purchase 
the  900  pigs  of  copper.  These  900  pigs  contained  113  quin- 
tals more  than  DonneWs  own  funds  would  have  purchased, 
after  exhausting  every  dollar  that  Donnell  had  in  the  hands  of 
Pawson. 

3d.  Donnell  and  Pawson's  representatives  had  notice  of 
these  specific  appropriations,  and  acquiesed  in  them. 

The  acquiescence  of  Pawson's  representatives  is  not  dispu- 
ted. They  claim,  according  to  adjustment  made  by  Edwards  $ 


OF  MARYLAND.  137 


Pawson's  Adm'rs  vs.  Donnell.    Donnell  vs.  Pawson's  Adra'rs. — 1829. 

Stewart,  and  have  always  so  claimed.    They  sue  on  that  ground. 
See,  also,  Graham's  letter,  May  15,  1822. 

Donnell,  also,  had  notice  and  acquiesced.  The  Chesapeake 
arrived  at  BaUimore,on  her  return  from  this  long  voyage,  Octo- 
ber 1,  1821.  Donnell  then  received  the  letters  of  Edwards  fy 
Stewart,  and  their  accounts,  and  the  bills  of  lading,  and  invoices 
contained  in  the  record,  which  gave  him  notice  of  every  thing 
that  had  been  done,  as  above  stated.  So  far  as  to  notice :  Now, 
as  to  acquiescence.  He  received  this  notice,  October  1,  1821. 
The  147  quintals,  shipped  on  Pawsorfs  account,  as  before  men- 
tioned, were  delivered  to  his  representatives  as  his  share,  Octo- 
ber 29,  1821.  All  the  rest,  it  seems,  was  retained  as  DonneWs. 
Some  months  afterwards,  and  after  a  full  investigation  of  all  the 
accounts  of  the  voyage,  Donnell  states  an  account  with  Pawson. 
We  have  said  that  this  account  was  made  out  after  a  full  investiga- 
tion of  the  accounts  of  the  voyage,  because  the  paper  itself  upon 
the  face  of  it,  shows  that  this  was  the  case ;  and  we  have  said 
that  it  was  made  out  some  months  afterwards,  because  the  ear- 
liest evidence  of  its  existence  is  to  be  found  in  Mr.  Graham^s 
letter  of  May  15, 1822.  In  this  account  he  states  the  147  quin- 
tals and  79  pounds,  as  the  whole  of  Pawson's  interest  in  the  cop- 
per. See  the  item  in  the  account,  in  which  he  charges  him 
with  his  proportion  of  the  expense  of  landing  and  reshipping  the 
copper.  Donnell  had,  at  that  moment,  in  his  hands  113  quin- 
tals more  than  his  own  funds  could  have  purchased.  Yet  he 
gives  no  account  of  this,  and  speaks  of  the  147  quintals  and  79 
pounds  as  the  whole  of  Pawson's  interest  If  Donnell  acquiesced 
in  the  transfer  to  him  of  $7777  87/^y  Edwards  <§<•  Stewart,  then 
he  was  not  bound  to  speak  of  this  113  quintals,  because  he  would 
be  debtor  for  the  $7777  87,  transferred  to  him,  and  he  would 
be  entitled  to  all  the  cargo  purchased  with  it,  and,  consequent- 
ly, to  the  113  quintals  above  "mentioned.  If  he  does  so  ac- 
quiesce, then  he  adopts,  also,  the  shipment  of  the  gold,  and,  of 
course,  gives  up  the  matter  in  controversy.  The  gold  was  ship- 
ped on  his  sole  account.  And  if  he  adopts  and  ratifies  the  acts 
of  Edwards  fy  Stewart,  as  to  the  113  quintals  of  copper  bought 
with  part  of  the  sum  transferred  to  him,  it  will  hardly  be  said 
VOL.  1—18. 


13S         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.    Donncll  r».  Pawson's  Adm'rs. — 1829. 

that  he  may  reject  the  gold,  because  it  was  unprofitable  or  lost. 
In  line,  he  may  in  this  aspect  of  the  case  accept  the  transfer  of 
the  &7777  87,  or  reject  it  altogether.  He  cannot  accept  it  in 
part,  and  reject  it  in  part.  He  has  accepted  it  as  relates  to  the 
113  quintals.  If  he  has  acquiesced  as  to  that,  he  must  acquiesce 
as  to  the  gold  also. 

It  can  hardly  be  supposed  that  Donnell  did  not  acquiesce  as 
to  these  113  quintals.  They  were  bought  with  part  of  the  sum 
of  $7777  87,  transferred  to  him  as  aforesaid.  He  had  no  other 
funds  to  buy  it.  If  he  did  not  mean  to  assent,  then  these  113 
quintals  belonged  to  Parson's  administrators.  Yet  Donnell, 
after  a  full  view  of  the  whole  ground,  accounts  with  them,  with- 
out allowing  them  these  113  quintals.  And  after  taking  all  the 
copper  to  himself,  and  these  113  quintals  with  the  rest,  he  makes 
himself  debtor  for  8185  09  only.  Whereas,  if  this  copper  be- 
longed to  Pawsoti's  administrators,  it  was  of  itself  worth  in  Bal- 
timore more  than  f  2000.  Donnell,  therefore,  stands  in  this  di- 
lemma. If  he  did  not  mean  to  ratify  what  was  done  by  Edwards 
&f  Stewart,  then  he  was  bound  to  deliver  over  this  copper  to 
Pawsoii's  representatives,  for  which  he  himself  had  not  paid,  and 
had  no  funds  to  pay.  If  he  did  mean  to  ratify  what  was,  done 
by  Edwards  Sf  Stewart,  he  had  a  right  to  retain  it.  In  the  first 
case,  he  could  not  rightfully  withhold  it.  In  the  second,  he 
might  honestly  do  so.  He  did  retain  it,  honestly  and  justly  we 
say,  because  the  funds  were  transferred  to  him,  and  it  was  ship- 
ped on  his  account.  It  will  not,  be  said  on  his  behalf,  that  he 
withheld  it  from  the  account  from  any  unworthy  motive.  He 
must  therefore  have  acquiesced  in  the  arrangements  made  by 
Edwards  Sf  Stewart.  His  conduct  in  regard  to  these  113  quin- 
tals of  copper  can  be  justified  on  no  other  ground. 

We  do  not  ask  the  court  to  say  that  this  conduct  was,  in 
point  of  law,  an  acquiescence  or  consent  on  the  part  of  Don- 
nell, and  irrevocably  bound  him.  But  we  insist  that  it  was  evi- 
dence of  his  acquiescence  and  consent,  after  notice  of  the  man- 
ner in  which  the  funds  had  been  appropriated ;  and  being  evi- 
dence of  such  acquiescence  and  consent,  it  ought  to  have  been 
left  to  the  jury  to  say  from  the  evidence,  whether  he  did,  or 


OF  MARYLAND.  139 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

did  not  acquiesce  in  the  disposition  of  the  funds  made  by  Ed- 
wards <^  Stewart.  If  he  did  assent,  it  is  quite  clear  that  in 
point  of  law  he  cannot  afterwards  recall  it.  The  case  of 
Prince  vs.  Clark,  8  Serg.  fy  Lowb.  54,  is  directly  in  point  on 
this  subject.  In  that  case  the  agent  applied  the  funds  of  the 
principal  in  a  manner  not  authorised : — in  this  case,  it  is  assum- 
ed for  the  sake  of  the  argument,  that  the  same  thing  was  done. 
In  that  case  the  principal  received  notice  of  the  manner  in 
which  his  funds  had  been  applied,  May  29,  1822 ;  and  gave 
notice  of  his  dissent,  August  7,  1822  ;  that  is,  in  less  than  two 
and  a  half  months  afterwards.  In  this  case  Donnell  must  have 
received  notice  of  the  application  of  his  funds,  when  the  ship 
arrived,  October  1,  1821  ;  and  he  expresses  no  disapprobation 
of  the  transfer  of  Pawson's  funds  to  his  account,  until  he  ren- 
dered his  account.  And  there  is  no  evidence  of  the  time  of 
rendering  that  account,  but  the  letter  of  Mr.  Graham ;  which 
letter  is  dated  May  15, 1822,  seven  months  and  a  half  after  the 
arrival  of  the  ship.  If  in  the  case  of  Prince  vs.  Clark,  the  silence 
of  the  principal,  or  rather  the  absence  of  any  evidence  of  dissent 
by  him  for  the  space  of  two  and  a  half  months,  was  evidence, 
from  which  the  jury  might  properly  find  that  he  had  acquiesced 
and  assented  to  the  act  of  the  agent; — surely  the  silence  of 
Donnell,  for  the  far  longer  period  above  stated,  was  evidence, 
from  which  a  jury  might  have  inferred  his  assent  and  acquiesc- 
ence in  the  acts  of  Edwards  <^  Steicart,  in  the  transfer  of  Paw- 
son's  funds  to  him,  and  in  the  shipment  of  the  copper  and  gold, 
on  his  "  sole  account,"  as  stated  in  the  letters  and  bill  of  lading. 
Indeed  this  case  has  this  strong  additional  circumstance  against 
the  principal,  that  the  legal  representatives  of  Pawson  were 
known  to  him,  were  living  in  the  same  town  with  him,  and  to 
whom  he  had  delivered  the  property,  shipped  on  account  of 
Pawson,  October  29,  1821.  And  in  the  ease  of  Prince  vs. 
Clark,  it  was  not  very  clear  that  Leigh  was  the  proper  person 
to  receive  the  notice ;  and  if  he  was  the  proper  person,  it  was 
not  very  clear  that  Prince  knew  it.  We  confidently,  therefore, 
rely  upon  this  case  to  prove  that  the  court  erred  in  the  opinion 
contained  in  the  third  exception,  in  which  they  decide  that  the 


1 10         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'ra  w.  Donnell.    Donncll  vs.  Pawson's  Adm'rs. — 1829. 


evidence  above  stated,  is  not  a  ratification  of  the  acts  of  Ed- 
wards $'  Stewart.  Whether  Donncll  did,  or  did  not  consent  to 
them  was  a  question  of  fact  for  the  jury,  and  not  of  law,  for  the 
court.  And  if  he  did  acquiesce  in  them  after  notice,  and  the 
jury  had  so  found,  then  in  point  of  law  it  ratified  what  Edwards 
8f  Slemtrt  had  done. 

So  far  we  have  considered  the  case  as  if  Donnell  in  his  ac- 
count had  dissented  from  the  appropriation  of  the  funds  made  by 
Mintnls  $•  Slcirart.  But  is  this  the  meaning1  of  the  account  in 
question?  Does  he  in  this  account  dissent  from  what  had  been 
done  ?  It  is  very  true  that  he  says,  in  noticing  this  item,  that 
the  transfer  of  $7,777  87,  was  very  improperly  made  to  him. 
But  he  does  not  reject  it.  He  does  not  refuse  to  accept  it.  On 
the  contrary,  he  credits  Pawson  with  the  whole  amount,  rejects 
from  it  Goddard's  funds,  and  then  reduces  the  balance  by 
charging  freight,  the  cost  of  the  gold,  &c.  &c.  and,  finally, 
leaves  a  balance  against  himself,  on  account  of  this  transfer  of 
$112  49  ;  and  this  sum  of  $1 12  49  is  a  part  of  the  balance  of 
$185  09,  which  Donnell  admits  to  be  due  from  him  to  P meson's 
representatives.  Is  not  this  a  direct  acquiescence  in  the  trans- 
fer ?  Is  it  not  a  positive  adoption  of  it  ?  True,  he  complains 
of  it,  and  denies  the  right  of  Edwards  fy  Stewart  to  make 
it.  Yet  he  accepts  it;  accounts,  as  he  supposes,  for  all  but 
$112  49;  and  admits  that  he  owes  that  sum  on  account  of  this 
transfer.  If  he  did  not  accept  it,  he  owed  nothing  on  that  ac- 
count. He  does,  therefore,  in  admitting  this  balance  to  be  due, 
also  admit,  by  necessary  implication,  that  he  assented  to  the 
transfer. 

The  account  is  in  writing;  and  whether  Donnell  does,  or 
does  not  by  this  account  accept  the  transfer  above  mentioned, 
must  depend  upon  the  language  of  the  account  which  is  to  be 
taken  all  together;  and  being  in  writing,  is  to  be  expounded  by 
the  court.  We  have  endeavoured  to  shew  the  court,  that  by 
the  true  construction  of  the  account,  he  has  assented  to  and  ac- 
cepted the  transfer.  If  we  are  right  in  this,  then  the  court 
ought  to  have  instructed  the  jury  that,  "under  the,  circumstan- 
ces of  the  case,"  the  account  of  Donnell  was  a  ratification  of  the 


OF  MARYLAND.  141 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

acts  of  Edwards  fy  Stewart.  For,  if  by  the  written  language 
of  the  account,  according  to  its  true  interpretation,  Donnell  had 
accepted  the  transfer,  his  assent  was  in  point  of  law  a  ratifica- 
tion; and  the  other  evidence  need  not  have  been  left  to  the 
jury.  If,  however,  we  are  wrong  in  our  interpretation  of  this 
account,  yet  all  must  concede  to  us  that  the  circumstances, 
herein  before  detailed  and  relied  on,  furnish  evidence  from 
which  a  jury  might  have  inferred  his  consent,  and  that  there- 
fore the  opinion  of  the  court  cannot  be  maintained. 

It  has  been  said  that  this  copper  was  retained  by  Donnell,  in 
order  to  meet  any  claim  that  Goddard  might  make  against  him. 
Now  the  motive  which  induced  him  to  retain  was  necessarily  a 
question  of  fact  for  the  jury,  and  not  one  of  law  for  the  court. 
Donnell  contends  that  he  retained  it  to  meet  any  demand  that 
Goddard  might  make :  we  insist  that  he  retained  it  as  his  own 
property,  shipped  to  him  and  on  his  own  account  by  Edwards  $• 
Steicart.  In  this  state  of  the  dispute  the  jury  must  decide  the 
controversy.  The  court  cannot  decide  tvhat  motive  or  inten- 
tion influenced  Donnell.  It  is  a  question  of  fact  The  argu- 
ment, therefore,  on  the  motives  which  governed  Donnell,  does 
not  tend  to  support  the  opinion  given  by  the  court.  As  the  mo- 
tive was  controverted,  it  was  not  in  the  province  of  the  court  to 
decide  the  controversy.  It  may  not,  however,  be  improper  ta 
remark  here,  that  Donnell  does  not,  in  his  account,  suggest  that 
he  retained  this  copper  for  the  reasons  now  assigned  in  the  ar- 
gument. He  gives  no  account  of  it  whatever,  and  Pawsorfs  re- 
presentatives did  not  know  any  thing  about  it.  It  is  quite  evi- 
dent that  Goddard  could  •  have  ^o  claim  against  Donnelly  or 
against  the  copper  brought  in  the  Chespeake.  He  never  pre- 
tended to  have  a  claim  against  either ;  and  we  shall  be  ready, 
at  the  proper  time,  to  shew  that  he  has  no  just  demand  against 
Pawson's  representatives.  With  that  controversy,  however,  we 
have  nothing  to  do  at  this  time.  It  is  sufficient  for  us,  on  this 
occasion,  to  show  that  it  cannot  be  taken  as  an  admitted  fact, 
that  Donnell  retained  this  copper  for  Goddard.  The  opinion  of 
the  court,  therefore,  in  the  third  exception,  cannot  be  sustained 
on  that  ground. 


142         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  w.  Donncll.     Donncll  vs.  Pawson's  Adm'rs. — 1829. 


There  is  another  objection  to  the  opinion  contained  in  the 
third  exception,  which  we  must  briefly  notice.  We  understand 
the  first  branch  of  the  direction  to  be  this: — that  if  Pawson, 
in  his  lifetime,  was  willing  to  waive  the  privilege  he  had  to 
bring  home  his  whole  funds  in  copper,  but  died  before  he  had 
actually  invested  the  funds  in  his  hands,  and  before  he  had 
actuallj  waived  it,  that  his  declared  intention,  his  willingness 
to  curtail  his  rights  would  bind  his  representatives,  and  compel 
them  to  relinquish  what  Pawson  had  been  willing  to  relinquish, 
and  had  intended  to  relinquish,  but  which  intention  he  had  not, 
in  his  lifetime,  carried  into  execution.  This,  we  presume,  must 
be  admitted  to  be  the  meaning  of  the  first  branch  of  this 
direction. 

Upon  what  principle  can  it  be  sustained  ?  Is  there  any  case 
in  which  the  intention  to  do  an  act  has  been  held  to  bind  the 
party,  or  his  representatives?  It  is  not  pretended  that  he  did, 
by  any  act  of  his  own,  surrender  a  part  of  his  privilege;  nor 
is  it  supposed  that  he  contracted  to  surrender  it,  or  any  part  of 
it  The  direction  stands  on  the  hypothesis,  that  he  was  willing 
to  accept  less  than  he  was  entitled  to.  His  willingness  to  do 
an  act  cannot  be  equivalent  to  the  act  itself.  We  are  not  to 
inquire  what  either  party  was  willing  to  do,  but  what  they  had 
done;  and  what  were  their  rights  at  the  time  of  Parson's  death; 
for  it  is  according  to  these  rights  that  the  cause  must  now  be 
decided.  It  is  time,  however,  that  this  argument  should  be 
brought  to  a  conclusion. 

We  have  endeavoured  to  show, — 1st,  that  Pawson  had  the 
permission  of  Donnell  to  bring  home  in  copper  the  whole  of 
his  own  funds,  if  in  his  discretion  he  thought  proper  to  do  so. 
And  that  this  permission  had  never  been  recalled  by  Donncll, 
nor  surrendered  by  Pawson.  2d.  That  upon  the  death  of  Pawson 
the  funds  remaining  unexhausted  came  to  the  hands  of  Edwards 
Sf  Stewart,  clothed  with  the  same  rights  and  privileges  that  be- 
longed to  them,  in  the  hands  of  Pawson.  3d.  That  being  so  in 
their  hands,  Edwards  Sf  Stewart  were  not  bound  to  exhaust 
DonneWs  funds  in  copper,  before  they  invested  any  part  of 
Pawson's  funds  in  that  article  •,  but,  on  the  contrary,  had  a  right 


OF  MARYLAND.  143 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

to  invest  if  they  thought  proper  to  do  so,  the  whole  of  Pawson's 
funds  in  that  article,  and  send  it  in  the  ship.  4thly.  That 
Edwards  fy  Stewart,  holding  thus  the  funds  of  both  parties  in 
their  hands,  and  Pawson's  funds  having  a  right  to  be  preferred  in 
the  investment  in  copper;  if  Edwards  fy  Stewart  in  the  exercise 
of  an  honest  discretion,  actually  invested  any  part  of  DonneWs 
funds  in  gold,  that  the  gold  became  the  property  of  Donnell; 
and,  if  a  profitable  investment,  he  was  entitled  to  claim  it ;  and 
if  it  proved  to  be  a  losing  one,  he  could  not  throw  the  loss  on 
Pawson's  representatives.  5thly.  We  have  endeavoured  to 
show  that  whatever  might  have  been  the  rights  of  the  parties, 
there  is  evidence  to  prove  that  all  of  them,  after  notice,  acqui- 
esced in  what  was  done  by  Edwards  fy  Stewart ;  and  if  from 
that  evidence  the  jury  should  find  such  acquiescence,  Donnell, 
as  well  as  Pawson's  representatives,  are  bound  by  it,  and  cannot 
recall  it,  no  matter  what  might  have  been  their  rights  before. 
And  6thly,  we  have  endeavoured  to  show  that  by  his  account, 
Donnell  has  given  a  written  assent  to  the  appropriations  of  the 
funds  made  by  Edwards  &i  Stewart ;  and  that  although  he  denies 
the  propriety  of  the  transfer  to  him,  yet  he  adopts  it,  and  states 
the  account  upon  the  principle,  that  he  is  to  account  for  the 
money  so  transferred,  and  does  not  deliver  or  offer  to  deliver 
the  property  in  which  it  was  invested,  but  retained  it  as  if  it 
were  his  own.  And,  relying  upon  the  soundness  of  these  pro- 
positions, the  case  is  submitted  to  the  Court. 

DORSEY  J.  at  this  term  delivered  the  opinion  of  the  Court. 

Of  the  refusal  of  the  Court  to/grant  the  instruction  prayed 
for,  which  forms  the  ground'  of  sippeal  on  the  appellant's  first 
bill  of  exceptions,  we  entirely  approve.  Had  the  instruction 
been  given,  it  would  have  been  a  palpable  invasion  of  the 
unquestionable  and  exclusive  right  of  the  jury:  that  of  deciding 
on  facts,  of  which  contradictory  testimony  is  adduced.  The 
appellees  "had  offered  in  evidence,  that  it  was  the  usage  among 
ship  owners  and  masters,  not  to  charge  freight  where  the  ship 
was  in  ballast,  for  any  articles  shipped  by  the  captain  on  his 
own  account."  The  appellant  then  "offered  in  evidence  that 


1 1  i         CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donncll.     Donnell  vs.  Pawson'a  Adm'rs. — 1829. 

there  was  no  usage  as  above  stated,  and  that  the  captain  was 
liable  to  freight  to  the  owner,  like  any  other  person,  if  he  chose 
to  exact  it."  In  such  a  state  of  the  proof,  the  court  could  not 
do  otherwise  than  reject  the  prayer,  calling  on  them  to  decide 
a  fact  thus  controverted. 

In  the  appellant's  second  bill  of  exceptions  are  involved  ques- 
tions of  great  magnitude  to  the  commercial  world  and  of  much 
intrinsic  difficulty;  and  we  regret  that  we  are  called  to  the  deci- 
sion of  these  questions,  without  proof  of  commercial  usages 
upon  the  subject.  In  the  argument  it  is  conceded  by  both  par- 
ties, that  the  owner  of  the  ship  and  cargo  has  the  uncontroled 
power  of  breaking  up  or  changing  the  voyage,  but  they  differ 
most  widely  as  to  the  consequences  which  would  ensue,  and  the 
nature  of  the  responsibilities,  to  which  the  owner  would  thereby 
be  subjected.  For  the  appellant  it  was  contended  that  this  well 
established  prerogative  of  the  ship  owner,  entered  into  the  con- 
templation of  Donnell  and  Pawson,  who  contracted  in  reference 
to  it.  That  upon  its  exercise  no  new  liabilities  were  created; 
the  Canton  privilege  no  longer  formed  any  part  of  the  contract ; 
nor  had  Pawson  any  claim  to  indemnity  for  its  loss.  This  is 
assuming  much  broader  ground  than  was  occupied  by  the  prayer 
to  the  court  below :  which  appears  predicated  on  the  admission 
of  Pawson's  title  to  recover,  but  for  his  alleged  voluntary  relin- 
quishment  of  his  right.  The  appellees,  on  the  other  hand,  in- 
sist, that  upon  the  change  of  the  voyage,  Pawson  was  not  only 
entitled  to  claim  an  indemnification  for  the  injuries  thereby  sus- 
tained :  but  the  full  value  of  the  Canton  privilege,  exempt  from 
all  the  casualties  to  which  it  was  naturally  liable :  and  also  the 
whole  compensation,  stipulated  as  an  allowance  to  the  supercar- 
go, whether  the  services  for  which  it  was  equivalent  were  ever 
rendered  or  not;  all  which  on  the  part  of  the  appellants,  is  strong- 
ly controverted.  The  principles,  contended  for  by  each  party, 
are  perhaps  stretched  further  than  reason  or  justice  would  sanc- 
tion or  public  policy  requires.  And  it  may  readily  be  imagined, 
how  the  counsel  on  both  sides,  if  yielding  to  the  impulse  of  their 
clients  interest,  would  have  changed  hands  in  the  argument , 
had  a  new  modification  been  given  to  the  facts,  in  the  case, 


OF  MARYLAND.  145 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

which  whilst  it  varied  its  aspect,  would  not  in  the  slightest  de- 
gree have  removed  it  from  the  operation  of  the  principles  now 
attempted  to  be  applied  to  it  Suppose,  for  example,  the  voy- 
age contracted  for  had  been  from  Baltimore  to  London,  and 
thence  home  with  a  cargo  of  dry  goods,  the  stipulated  compen- 
sation of  Captain  Pawson,  in  addition  to  his  monthly  wages,  be- 
ing three  hundred  dollars  ;  but  no  privilege.  After  the  sailing 
of  the  vessel,  owing  to  a  sudden  depression  in  the  price  of  dry 
goods,  Donnell  changes  the  voyage :  directs  that  eight  thousand 
doubloons  be  taken  on  board  at  London:  be  transported  to  Co- 
quimbo:  there  converted  into  a  full  cargo  of  copper :  which  was 
to  be  sold  at  Canton,  and  the  proceeds  of  sale  there  invested  by 
Pawson  in  a  suitable  invoice  were  to  be  brought  home  by  him, 
in  the  Chesapeake  to  Baltimore:  under  such  circumstances 
would  Pawson's  counsel,  as  they  now  do,  insist  on  the  compensa- 
tion fixed  in  the  original  contract,  when  the  emolument  incident 
to  the  substituted  voyage,  by  universal  usage  of  trade,  were 
twenty  times  as  great  as  those  which  belonged  to  the  original? 
Impelled  by  the  interests  of  their  client,  they  surely  would  re- 
quire, the  accustomed  reward  for  the  services  rendered.  Whilst 
the  counsel  for  the  appellant,  if  influenced  exclusively  by  his 
interests,  would  insist  on  his  discharge,  upon  payment  of  the 
sum  specified  in  the  agreement. — But  suppose  another  case 
slightly  variant  in  circumstances,  but  the  same  in  principle — A 
ship-owner  in  Baltimore,  for  a  fixed  compensation  (say  §300) 
employs  a  captain  to  navigate  his  vessel  to  the  Havana :  there 
to  sell  his  outward  and  purchase  a  return  cargo.  Before  she 
reaches  the  mouth  of  the  Chesapeake,  her  destination  is  changed ; 
she  is  ordered  on  a  trading  voyage  that  may  last  for  years;  she  is  to 
double  Cape  Horn  and  return  by  the  Cape  of  Good  Hope;  would 
it  be  attempted  to  limit  the  reward  for  the  captain's  services  to 
the  sum  mentioned  in  the  original  agreement?  But  to  present 
the  question  on  facts  more  immediately  before  us,  suppose  the 
Chesapeake  on  her  originally  destined  voyage,  before  she  had 
passed  the  waters  of  Maryland,  had  been  ordered  to  Norfolk, 
there  to  sell  her  cargo  and  return  to  Baltimore;  could  it  be  pre- 
tended that  Pawson  would  in  such  circumstances  have  been  en- 
VOL.  1.— 19. 


146          CASES  IN  THE  COURT  OF  APPEALS 

Pawson's  Adm'rs  vs.  Donnell.     Donnell  va.  Pawson's  Adm'rs — 1829. 

titled  to  the  two  thousand  dollars,  and  the  undiminished  value  of 
the  Canton,  privilege ! 

If  the  rule  contended  for  either  by  the  appellants  or  the  ap- 
pellees be  a  good  one,  it  must  work  both  ways,  as  well  to 
cases  where  the  length  of  the  voyage  is  increased,  as  where  it 
is  diminished.  In  its  operation  it  would  always  work  injustice 
to  one  party  or  the  other ;  and  in  the  latter  case,  it  would,  in 
effect,  annihilate  that  acknowledged  and  invaluable  right  in 
ship  owners,  of  controling  the  destination  of  their  property ;  as 
its  enjoyment  would  be  visited  by  penalties  more  than  equiva- 
lent to  the  losses  apprehended  from  the  original,  or  benefits  an- 
ticipated from  the  substituted  voyage.  Reason,  justice  and 
public  policy,  are  never  to  be  lost  sight  of  in  the  construction  of 
commercial  contracts;  in  unison  with  which,  it  would  be  diffi- 
cult to  reduce  the  rules  insisted  on  by  the  parties  to  this  contro- 
versy. The  principles  which  should  govern  cases  like  the  pre- 
sent, according  to  our  views,  (in  the  absence  of  all  commercial 
usage  on  the  subject,)  are  these.  If  by  the  exercise  of  this 
important  privilege,  a  special  injury  is  done  to  the  captain  or  su- 
percargo, the  ship  owner  must  bear  the  loss ;  he  must  make  a 
reasonable  indemnity.  If  on  the  contrary,  by  the  change  of 
voyage  the  captain  or  supercargo  be  necessarily  discharged  from 
the  performance  of  all  the  duties,  for  which  a  remuneration  has 
been  stipulated,  his  claim  to  such  remuneration  is  thereby  ex- 
tinguished. If  a  part  of  the  duties  have  been  executed,  then 
such  a  proportion  of  the  stipulated  compensation  should  be  al- 
lowed, as  appears  just,  on  comparing  the  services  rendered,  un- 
der the  voyage  originally  contemplated,  with  those  which  re- 
main unperformed.  For  the  interpolated  part  of  the  voyage  the 
usual  compensation  must  be  paid.  The  parlies  should  be  placed, 
as  nearly  as  may  be,  in  the  same  condition  in  which  they  would 
have  stood,  had  a  previous  contract,  for  the  voyage  as  changed, 
been  entered  into  between  them.  To  all  the  customary  emolu- 
ments of  a  captain  or  supercargo,  on  such  a  voyage,  are  those 
officers  respectively  entitled. 

The  County  Court,  we  therefore  think  erred,  in  the  appel- 
lant's second  bill  of  exceptions,  in  refusing  to  instruct  the  Jury  as 


OF  MARYLAND.  147 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

prayed,  that  <'  the  plaintiff  (below)  is  not  entitled  to  any  compen- 
sation, for  the  alleged  loss  of  the  privilege  of  bringing  home 
the  twenty-five  tons  from  Canton;"  that  being  a  privilege,  so 
inseparably  connected  with  the  vessel's  destination  to  Canton; 
that  upon  its  ceasing,  as  it  did,  to  be  one  of  the  termini  of  the 
voyage,  the  privilege  of  necessity  expired  with  it. 

With  the  opinion  of  the  court  below  in  the  third  bill  of  excep- 
tions we  concur.  The  alleged  misconduct  of  the  captain,  hav- 
ing produced  neither  injury  nor  inconvenience  to  the  appellant, 
forms  no  defence  to  the  present  action. 

According  to  the  views  before  expressed  by  us,  the  County 
Court  were  in  error  in  their  refusal  to  grant  the  prayer  in  the 
appellant's  fourth  bill  of  exceptions ;  and  also  in  the  opinion  and 
direction  they  thereon  gave  to  the  jury,  and  in  conformity  with 
the  same  views,  we  approve  of  their  refusal  of  the  opinion  and 
direction  prayed  for  in  the  appellant's  fifth  bill  of  exceptions. 

The  decision  made  by  this  court  on  the  second  bill  of  excep- 
tions, renders  it  unnecessary  for  them  to  examine  the  opinion  of 
the  County  Court  in  the  appellant's  sixth  bill  of  exceptions :  as 
by  that  decision  the  appellant's  prayer  becomes  wholly  immate- 
rial and  irrelevant  to  the  issues  in  the  cause  ;  and  let  the  deter- 
mination of  the  County  Court  be  what  it  might,  it  would  furnish 
no  ground  for  reversing  their  judgment.  The  same  may  be  said 
in  relation  to  the  appellant's  ninth  bill  of  of  exceptions. 

Of  the  refusal  of  the  Court  below  to  grant  the  prayer  in  the 
appellant's  seventh  bill  of  exceptions  we  in  part  approve  and  in 
part  disapprove.  They  were  wrong  in  refusing  to  instruct  the 
jury  that  the  plaintiffs  below  were  not  entitled  to  recover  the 
said  sum  of  two  thousand  dollars :  but  were  right  in  refusing  to 
instruct  the  jury  that  they  were  not  entitled  to  recover  "  any 
part  thereof." 

We  concur  with  the  County  Court  in  their  refusal  to  grant  the 
appellant's  prayer  contained  in  his  eighth  bill  of  exceptions. 

There  being  cross  appeals  in  this  case,  it  now  becomes  neces- 
sary to  consider  the  exceptions  on  the  part  of  the  appellees.  It 
has  been  attempted  to  sustain  the  opinion  of  the  County  Court 
in  the  appellee's  first  bill  of  exceptions,  on  the  ground  that 


[  i-         CASES  IN  THE  COURT  OF  APPEALS 

Pawson 's  Adm'rs  vs.  Donncll.     Donucll  vs.  Pawson's  Adm're. — 1829. 

Edwards  $f  Stewart  were  the  agents  not  of  Donnell,  but  of 
Pairson,  and,  that  lie  only  must  be  answerable  for  their  acts. 
AVith  this  doctrine  to  the  extent  to  which  it  is  urged  we  cannot 
concur.  It  is  in  proof,  that  it  was  the  known  and  necessary 
t:n>tom  of  trade  at  Chili  and  at  Coquimbo  in  the  business  in, 
which  Pairson  was  engaged,  to  employ  agents  on  shore,  such 
as  Edwards  fy  Stewart.  That  tlie  selection  of  such  agents  in 
this  case,  was  not  made  bona  fide,  and  with  discretion,  there  is  no 
insinuation.  The  consequences  of  the  neglect,  omissions,  or  mis- 
conduct of  Edwards  fy  Stewart,  in  their  agency,  not  imputable 
to  Pawson,  must  be  borne  by  Donnell ;  in  fact  they  are  his 
agents,  though  appointed  by,  and  under  the  immediate  control 
of  Pawson.  For  their  acts  tlierefore,  after  Pawson's  death,  not 
flowing  from  any  instructions  previously  given  by  him,  in  rela- 
tion to  DonnelVs  funds,  they  only,  and  to  him  alone,  are  answer- 
able. This  doctrine  is  fully  sustained  by  the  opinion  of  this  court 
in  the  case  of  Jackson  vs.  The  Union  Sank  of  Maryland,  6 
llarr.  8f  Johns.  150,  and  by  the  late  decision  of  Judge  Hallowell 
before  a  special  jury  in  the  district  court  of  the  city  and  county 
of  Philadelphia.  In  refusing,  therefore,  to  give  the  instruction 
prayed  for,  we  think  the  County  Court  erred. 

The  prayer  in  the  appellee"^  second  bill  of  exceptions  being 
in  the  alternative,  the  court  below  were  right  in  instructing  the 
jury,  that  if  Pawson  in  his  lifetime  made  the  investment  in  gold, 
that  he  must  bear  the  loss;  but  in  the  instruction  given  on  the 
latter  branch  of  the  alternative,  we  conceive  the  court  were 
wrung,  upon  the  grounds  assumed  by  us  in  the  consideration  of 
the  appellee's  first  bill  of  exceptions.  It  being  a  question,  under 
all  the  proofs  and  circumstances  of  the  case,  fairly  open  for 
discussion  before  the  jury;  whether  the  purchase  of  the  gold 
was  made  under  any  instruction  or  authority  from  captain 
Pawson.  By  their  decision,  they  have  determined  that  matter 
of  fact  in  the  affirmative,  and  consequently  overleaped  one  of 
the  barriers  interposed  between  the  court  and  the  jury. 

The  first  branch  of  the  third  exception  of  the  appellee's,  is 
inaccurately  drawn;  and  if  construed  according  to  its  obvious 
import,  might  have  been  rejected  by  the  court  for  irrelevancy 


OF  MARYLAND.  U9 


Pawson's  Adm'rs  vs.  Donnell.     Donnell  vs.  Pawson's  Adm'rs. — 1829. 

to  the  matters  in  issue  before  them.  It  prays  an  instruction  to 
the  jury  "that  the  plaintiff  (below)  is  not  entitled  to  recover  of 
the  defendant,  the  amount  of  any  gold  or  silver,  which  the  said 
Pawson,  or  his  agents,  the  said  Edwards  4*-  Stewart,  may  have 
put  on  board  the  Chesapeake,  of  their  own  accord,  and  without 
the  knowledge,  consent  or  orders  of  the  defendant  (below)  and 
which  may  have  been  afterwards  seized  by  the  government  of 
Chili,  and  confiscated  as  having  been  attempted  to  be  exported 
contrary  to  the  laws  of  the  land."  The  plaintiff  did  not  claim 
to  recover  the  amount  of  any  gold  or  silver ;  on  the  contrary, 
the  gist  of  the  controversy  was  his  disclaimer  of  all  interest  in 
the  gold  or  the  funds  with  which  it  was  purchased.  The 
prayer  was  therefore  inapplicable  to  the  issue.  But  give  to 
the  exception  that  construction  which  has  been  ascribed  to  it 
in  the  argument;  that  it  presents  the  question  whether  the 
amount  of  this  gold,  could  by  the  jury  be  discounted  from  any 
claim  which  Pawson  might  have  upon  Donnell,  and  the  prayer 
is  too  wide  to  be  gratified  in  extenso.  If  the  investment  in  gold 
was  made  by  Pawson  in  his  lifetime,  or  in  obedience  to  his 
directions,  then  the  discount  contended  for  should  have  been 
sanctioned  by  the  court;  but  if  the  investment  were  the  act  or 
Edwards  fy  Stewart  without  orders  from  Pawson,  then  the  loss- 
of  the  gold  shipped  must  fall  upon  Donnell.  The  instruc- 
tion of  the  County  Court  embraces  both  alternatives,  and  is- 
therefore  erroneous.  In  their  opinion,  on  the  latter  part  of  this 
exception,  regarding  the  ratification  by  Donnell,  of  the  purchase- 
and  shipment  of  the  gold,  we  concur  with  the  County  Court. 

Having  assented  to  the  decisions  of  the  court  below,  con- 
tained in  the  appellant's  first,  third,  fifth  and  eighth  bills  of  ex- 
ceptions ;  but  dissented  from  those  in  the  appellant's  second,, 
fourth  and  seventh  bills  of  exceptions;  and  having  dissented 
from  their  opinions  in  the  appellees  three  bills  of  exceptions : 

Their  JUDGMENT  is  REVERSED  AND  A  FROCEDENDO  AWARDED* 


150         CASES  IN  THE  COURT. OF  APPEALS 

\YirgmatTs  Adm'rs  tw.  Mactier. — 1829. 


WIRGMAN'S  Adm'rs  vs.  MACTIER.— December,  1829. 

THE  owner  of  a  ship  after  she  was  laden  at  Baltimore,  on  the  14th  May,  1810, 
agreed  with  the  shippers  of  the  cargo,  in  writing,  that  their  goods  were 
"to  be  landed  in  a  permitted  port  on  the  continent  of  Europe,  (meaning 
that  they  were  not  to  be  landed  at  the  Island  of  Sylt)  before  the  freight 
should  be  earned,  but  should  the  whole  of  the  continent  be  shut,  the  freight, 
with  an  addition  as  arbitrators  might  determine,  would  be  earned,  should 
the  property  be  landed  in  England,  agreeably  to  the  custom  of  the 
country."  On  the  25th  April,  1810,  a  charter  party  had  been  entered  into 
for  the  same  ship,  by  which  the  owner  covenanted  to  proceed  with  his 
ship  from  Baltimore,  north  about,  for  the  Island  of  Sylt,  thence  to  Hamburg 
or  Bremen,  if  open  to  American  ships,  if  not,  the  cargo  to  be  landed  at 
Sylt  if  permitted,  and  in  case  of  refusal  there,  thence  to  such  permitted 
port  in  the  North  Sea  or  Baltic,  as  the  master  and  supercargo  might  direct; 
and  should  the  Baltic  be  closed  against  the  admission  of  American  vessels, 
then  to  such  other  port  as  the  master  and  supercargo  might  again  direct. 
The  freight  was  to  be  paid  agreeably  to  the  bills  of  lading,  provided  the 
cargo  was  discharged  at  a  port  in  the  North  Sea;  but  if  delivered  at  any 
port  in  the  Baltic,  an  advance  in  the  freight  was  covenanted  for;  and  should 
the  Baltic  be  shut,  a  further  advance  in  the  freight  to  be  settled  by  arbitra- 
tion. On  the  8th  May,  1810,  a  bill  of  lading  was  also  signed  for  the  plain- 
tiff's goods,  which  stated  the  ship  to  be  bound  from  Baltimore  for  Sylt,  and 
a  permitted  port  in  the  North  Sea  or  Baltic,  the  goods  to  be  delivered  at 
the  aforesaid  permitted  port,  unto  P  of  Hamburg,  who  was  not  the  super- 
cargo of  the  ship.  In  an  action  where  the  plaintiff  claimed  under  these 
contracts,  he  offered  testimony  to  establish  that  certain  ports  in  Europe 
not  on  the  North  Sea  or  Bailie,  were  open  to  American  vessels,  but  th« 
court  held  that  looking  to  the  historical  facts  and  occurrences  of  the  time, 
it  was  manifest  that  the  voyage  was  undertaken,  and  the  charter  party, 
bill  of  lading,  and  agreement  entered  into,  with  a  view  to  the  then  political 
state  of  affairs  in  Europe,  and  should  be  construed  with  a  view  thereto—- 
that the  permitted  port  on  the  continent  of  Europe,  in  which,  the  goods 
were  by  the  agreement  to  be  landed,  before  freight  could  be  earned,  was 
intended  to  be  a  permitted  port  in  the  North  Sea  or  the  Baltic;  and  also  that 
all  the  said  instruments  must  be  construed  in  connexion  with  each  other, 
and  the  general  terms  in  the  agreement  of  the  14th  May,  restricted  to  the 
North  Sea  and  Baltic;  and  therefore  rejected  the  testimony  offered,as  inad- 
missible and  irrelevant. 

Whether  ship  owners  are  entitled  in  equity  and  good  conscience,  to  retain 
money  received  on  account  of  freight,  is  clearly  a  question  not  to  be  left  to 
the  jury;  but  proper  only  to  be  decided  by  the  court,  under  the  circum- 
stances of  each  case. 


OF  MARYLAND.  151 

Wirgman's  Adm'rs  vs.  Mactier. — 1829. 

So  where  in  an  action  of  assumpsit  brought  by  the  owner  of  merchandize 
shipped  in  the  defendant's  vessel,  to  recover  a  sum  which  the  defendant 
had  received  and  retained  for  freight,  it  appeared  that  the  shipment  was 
made  under  the  charter  party,  bill  of  lading,  and  agreement  above  referred 
to,  and  that  the  master  was  furnished  with  instructions  from  the  plaintiff, 
as  follows,  "on  account  of  the  unsettled  state  of  affairs  on  the  continent  of 
Europe,  I  have  thought  proper  to  request  my  friends  Messrs.  P-  $f  Co.  of 
Hamburg,  in  the  event  of  the  cargo  of  the  ship  being  denied  entry  at  their 
port,  to  consult  with  you  on  the  further  destination  of  the  ship,  and  the 
disposal  of  my  interest  on  board.  In  case  they  have  no  friend  at  the 
port  she  may  proceed  for,  you  will  please  take  charge  of  it,  and  advise 
with  them  what  is  best  to  be  done  for  my  interest.  On  your  arrival  off  Sylt, 
should  the  situation  of  affairs  be  such  as  to  prevent  you  from  communi- 
cating with  Messrs.  P.  Sf  Co.,  in  that  case  you  will  have  to  proceed  with  the 
cargo  where  you  judge  it  will  be  most  advantageous  for  all  concerned, 
when  I  shall  consider  my  part  as  entirely  under  your  charge,  &c."  The 
ship  sailed  on  her  voyage,  was  captured  before  her  arrival  off  Sylt,  taken 
into  a  port  in  Norway,  but  ultimately  released.  The  master,  after  the 
restoration  of  his  ship  and  cargo,  without  consulting  with  the  consignees 
about  the  further  destination  of  the  ship,  or  disposition  of  the  plaintiff's 
property,  although  he  had  the  means  of  communicating  with  them,  pro- 
ceeded with  his  ship  to  England,  there  delivered  his  cargo,  and  received 
(from  the  agents  who  sold  the  cargo,)  as  freight,  the  sum  claimed  in  this 
action.  HELD,  he  was  not  entitled  to  retain  it. 

Where  by  the  municipal  regulations  of  certain  ports,  a  certificate  of  origin 
was  necessary  to  the  admission  of  certain  merchandize  there,  a  shipmaster 
having  received  such  goods  on  board  his  ship,  and  signed  a  bill  of  lading 
for  their  delivery  at  one  of  such  ports,  cannot  in  the  absence  of  evidence 
to  shew  it  was  the  duty  of  the  shipper  to  furnish  such  a  certificate,  set  up 
the  fact  of  that  document  not  being  on  board  his  ship,  as  an  excuse  for 
not  entering  the  port  at  which  he  had  agreed  to  land  the  property  entrusted 
to  him;  nor  as  a  justification  for  his  delivering  it  at  another  port,  and 
thereby  earn  freight. 

APPEAL  from  Baltimore  County  Court.  This  is  the  same 
case  which  was  before  this  court  at  December  Term,  1819,  (4 
Hair,  fy  Johns.  558,)  on  appeal  from  Baltimore  county,  where- 
in the  Judgment  was  reversed,  and  the  record  remitted  under  a 
procedendo. 

1 .  At  the  second  trial,  the  same  evidence  was  offered  as  on 
the  first  trial,  and  which  is  set  out  in  the  bill  of  exceptions  then 
taken,  [see  4  Hair.  &f  Johns.  568]  except  that  stated  in  page 
574,  lines  5,  6,  7,  8  and  9,  from  the  bottom,  as  to  the  under- 


|.v»          CASK*  IN  THE  COURT  OF  APPEALS 

Wirgman's  Adm'rs  r.t.  Mactier— 1829. 

standing  of  the  merchants  of  Baltimore,  &c.  Also  that  of  Jl. 
Campbell,  in  page  575,  lines  5,  &c.aud  substituting  that  of  James 
Dooky  as  hereafter  mentioned.  Also  omitting  in  page  575,  lines 
3,  4,  5,  6  and  7  from  the  hottom.  The  defendants  in  order  to 
prove  that  Peter  IHrgman  was  ordered  to  leave  Denmark  by 
tin-  Collector  of  the  Customs  at  Flekkcfiord  without  delay,  read 
in  evidence  the  deposition  of  James  Dooky,  taken  by  consent. 
He  deposed  "  that  he  was  the  second  officer  on  board  the  ship 
Willuiin  Wilson,  Peter  Wirgman,  commander,  on  a  voyage  to 
Europe,  in  the  year  1810.  In  the  month  of  October  or  Novem- 
ber of  the  same  year,  while  the  said  ship  was  lying  at  Flekke- 
jiord, in  JVonrat/,  and  before  the  Admiralty  proceedings  against 
said  ship  were  terminated,  the  deponent  was  present  at  conver- 
sations between  E.  Thomman,  supercargo  of  said  ship,  and  said 
Peter  Wirgman,  in  which  the  said  Thomman  united  with  the 
said  Wirgman  in  determining  that  in  the  event  of  the  liberation 
of  said  ship  and  cargo,  they  would  proceed  with  the  same  to  the 
port  of  Hull,  in  England.  That  subsequent  to  the  above  conver- 
sation, and  while  the  said  ship  lay  at  Fkkkefiord,  as  aforesaid,  the 
said  Thomman,  in  the  absence  of  Captain  Wirgman,  asked  this 
deponent,  and  Walter  Pratt,  first  officer  of  said  ship,  what  time 
it  would  require  to  get  said  ship  in  readiness  for  sea;  and  then 
declared  his  determination  to  proceed  with  said  ship  and  cargo, 
in  the  event  of  their  liberation,  to  Hull,  as  aforesaid.  That  a 
day  or  two  afterwards  the  said  Thomman  left  Flekkejiord  and 
proceeded,  as  this  deponent  understood,  to  Christiansand,  and 
this  deponent  did  not  see  him  afterwards.  This  deponent  fur- 
ther saith,  that  sometime  in  the  latter  end  of  November,  the  said 
fillip  left  Fkkkefiord,  and  ilropt  down  to  the  Jllbernes,  and  re- 
mained there  until  about  the  10th  day  of  December,  when 
Captain  Wirgman  came  on  board  from  Flekkejiord,  accompa- 
nied by  a  pilot,  who  ordered  the  ship  to  be  got  under  weigh ; 
and  declared,  in  answer  to  a  question  put  to  him  by  this  depo- 
nent, why  he  meant  to  proceed  with  the  ship  to  sea  that  night, 
that  he  had  received  an  order  to  that  effect  from  inspector 
lessen,  who  was  the  Collector  or  Custom-house  Officer  at 
Fkkkefiord.  This  deponent  further  saith,  that  two  or  three 


OF  MARYLAND.  153 


Wirgman's  Adm'rs  vs.  Mactier. — 1829. 


days  before  the  said  ship  proceeded  to  sea,  the  said  Wirgman 
sent  an  express  to  Fahareund,  to  hurry  the  said  Thomman  on  to 
Jllbernes,  to  join  the  said  ship.  That  the  said  Peter  Wirgman 
expressed  an  anxiety  that  the  said  Thomman  should  arrive  at 
Jllbernes  before  the  said  ship  proceeded  to  sea.  That  after  the 
said  ship  had  got  down  to  the  harbours  mouth,  the  night  being 
very  tempestuous  and  stormy,  Captain^  Wirgman  prevailed  upon 
the  pilot  to  return  with  said  ship  to  her  former  anchorage,  alle- 
ging the  weather  as  an  excuse,  but  in  reality,  as  this  deponent 
understood,  to  afford  further  time  for  the  said  Thomman  to  join 
the  ship-,  but  that  the  said  ship,  after  getting  within  a  quarter, 
of  a  mile  of  her  former  anchorage,  was  struck  aback  and  com- 
pelled to  proceed  to  sea;  that  the  said  ship  proceeded  to  Hull, 
and  that  on  her  passage,  this  deponent  heard  Captain  Wirgman 
frequently  express  a  wish  that  said  Thomman  had  joined  the 
said  ship  at  Jllbernes,  as  the  said  Thomman  had  promised." 

The  defendants  further  offered  evidence  that  the  cargo  of 
the  plaintiff  was  colonial  produce  ;  and  to  prove  that  no  Ameri- 
can vessel,  laden  with  colonial  produce,  would  have  been  per- 
mitted at  the  time  the  said  ship  William  Wilson  left  Norway, 
as  aforesaid,  to  land  the  said  produce  in  any  port  in  the  Baltic 
or  North  Sea,  unless  the  cargo  of  such  vessel  was  accompa- 
nied by  proper  certificates,  shewing  the  origin  thereof,  and  that 
the  same  was  not  the  produce  of  Great  Britain,  or  any  of  her 
colonies,  read  in  evidence,  by  consent  of  the  plaintiff,  from  the 
British  Register,  the  American  Register,  the  American  state  pa- 
pers, and  the  Federal  Gazette  newspaper,  published  in  Balti- 
more, in  the  year  1810,  certain  orders,  decrees  and  municipal 
regulations  of  France,  Denmark,  Prussia,  Russia,  Jlustria  and 
Sweden,  which  it  was  agreed  shall  be  read  in  the  argument  of 
this  cause  before  the  Court  of  Appeals.  The  defendants  also  of- 
fered in  evidence,  that  Wirgman,  after  he  left  Flekkefiord,  as 
aforesaid,  was  without  further  means,  or  opportunity  of  com- 
municating with  the  said  Parish  Sf  Co.  until  his  arrival  at  Hull, 
as  aforesaid. 

The  plaintiff  then  offered  to  prove  by  John  Donnell,  a  wit- 
ness, sworn  at  the  bar,  that  a  certain  ship  or  vessel,  called  the 
VOL.  1—20. 


r,t          CASES  IN  THE  COUKT  OF  APPEALS 

AVir^mrui's  Adm'rs  vs.  Macticr. — 1829. 

Eleanor,  belonging  to  the  said  Donnelly  with  a  cargo  consisting 
of  colonial  produce,  li;nl  Billed  iVom  lidltimorc,  iu  the  year 
ISK),  and  proceeded  to  Gontfafirinopk,  a  port  on  the  continent 
of  Europe,  situate  on  the  Dardanelles,  where  she  had  landed  and 
delivered  her  cargo  in  safety,  without  any  molestation  hy  the 
government  of  that  country  ;  and  also  offered  in  evidence  by  the 
same  witness,  that  in  the  year  1810,  a  vessel  belonging  to  him 
proceeded  to  the  port  of  Salonica,  on  the  continent  of  Europe, 
on  the  J\Iorea,  loaded  with  colonial  produce;  and  also  offered 
evidence  that  the  port  of  Gibraltar,  on  the  continent  of  Europe, 
was,  in  the  year  1810,  open  to  American  ships,  loaded  with  co- 
lonial produce.  To  the  admissibility  of  which  evidence  the  de- 
fendants objected,  because  the  said  evidence  had  no  relation  to 
the  matter  in  controversy  in  this  suit,  between  the  plaintiff  and 
defendants',  but  the  court  [Archer,  Ch.  J.  and  Hanson  and  Ward, 
A.  J.]  overruled  the  said  objection,  and  admitted  the  said  evi- 
dence ;  being  of  opinion  and  so  directed  the  jury,  that  the  con- 
tract of  the  said  Charles  4*-  Peter  Wirgman  with  the  plaintiff, 
was  not  limited  to  the  ports  of  the  continent  in  the  JYor//i  Sea  or 
fiultic,  but  extended  to  every  port  of  the  continent  of  Europe 
whatsoever.  To  which  opinion  and  direction  and  the  admission 
of  said  evidence,  the  defendants  excepted. 

2.  The  defendants  then  moved  the  court  to  direct  the  jury, 
that  if  they  shall  believe  that  agreeably  to  the  orders  and  decrees 
of  France,  Prussia,  Russia,  Sweden,  and  Denmark,  as  produced 
in  evidence  in  this  cause,  all  uncertificated  colonial  produce  was 
prohibited  from  entry  into  the  ports  of  those  respective  coun- 
tries, and  that  the  captain  of  the  ship  William  Wilson  was  un- 
provided with  a  certificate  of  origin  for  that  part  of  the  cargo 
which  belonged  to  the  plaintiff,  and  which  consisted  of  colonial 
produce;  that  then  the  captain  was  justified  in  not  attempting  to 
enter  any  of  the  ports  of  the  countries  before  mentioned,  to  land 
the  said  cargo,  and  that  in  proceeding  to  Hull  for  that  purpose  he 
fulfiled  the  contract  between  the  plaintiff  and  the  ship  owners, 
and  entitled  them  to  freight  according  to  said  contract,  and  con- 
sequently that  the  plaintiff  cannot  recover  in  this  action.  Which 
direction  the  court  refused  to  give.  The  defendants  excepted. 


OF  MARYLAND.  155 


Wirgman's  Adm'rs  vs.  Mactier — 1829. 


3.  The  defendants  also  moved  the  court  to  direct  the  jury, 
that  if  from  a  consideration  of  all  the  circumstances  as  given  in 
evidence  in  this  cause,  they  shall  he  of  opinion,  that  the  defen- 
dants are  entitled  in  equity  and  good  conscience,  to  retain  the 
money  by  them  received,  that  then  the  plaintiff  is  not  entitled  to 
recover  on  the  first  count  of  his  declaration.     Which  direction 
the  court  refused  to  give.     The  defendants  cxcepted. 

4.  The  defendants  further  moved  the  court  to  direct  the  jury, 
that  if  they  shall  be  of  opinion  that  all  the  ports  of  the  continent 
of  Europe,  on  the  North  Sea  and  in  the  Baltic,  were  closed  by 
municipal  regulations  against  the  admission  of  a  vesseland  cargo 
in  the  predicament  of  the  William  Wilson  at  the  time  of  her  lib- 
eration by  the  Court  of  Admiralty  at  CJtiistiansand,  and  that  in 
these  circumstances,  the  William  Wilson  was  expelled  from  the 
ports  of  Norway  by  the  orders  of  ihe^Danish  government  so  sud- 
denly as  not  to  allow  time  for  a  further  correspondence  between 
Peter  Wirgman  and  David  Parish  SfCo.  of  Hamburg,  that  by  these, 
events,  and  by  force  of  the  letter  of  instructions  from  the  plaintiff 
to  Peter  Wirgman,  of  the  8th  day  of  May,  1810,  the  said  Wirg- 
man  became  the  special  agent  of  the  plaintiff,  and  that  being  such 
special  agent  if  he  proceeded  to  Hull  and  then  accepted  that  part 
of  the  cargo  which  belonged  to  the  plaintiff  in  satisfaction  of  the 
contract,  he  the  plaintiff  is  not  entitled  to  recover  in  this  action. 
Which  direction  the  court  refused  to  give.     The  defendants 
excepted ;  and  the  verdict  and  judgment  being  against  them, 
they  appealed  to  this  court. 

The  cause  was  argued  before  E^UCHAN AN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN  and  DORSET/,  J. 

Meredith  for  the  appellants,  contended:  1.  On  the  first  bill 
of  exceptions,  that  the  evidence  offered  by  the  appellee,  was 
irrelevant  and  inadmissible;  because,  by  the  true  construction 
of  the  contract,  it  looked  for  the  destination  of  the  cargo,  to  a 
permitted  port  in  the  North  Sea,  or  Bailie,  and  not  to  a  port, 
or  ports  on  the  continent,  situated  on  any  other  sea. 

2.  That  such  being  the  true  construction  of  the  contract,  and 
appellants  having  offered  evidence,  that  agreeably  to  orders 


I*;         CASES  IN  THE  COURT  OF  APPEALS 

Wirgman's  Adm'n  vs.  Mactier. — 1829. 

and  decrees  of  France,  Prussia,  Russia,  Sweden  and  Denmark, 
all  tincertificated  colonial  produce  was  prohibited  from  entry  in 
the  ports  of  those  respective  countries;  and  that  the  goods  of  the 
appellee,  which  consisted  of  colonial  produce,  were  unaccom- 
panied hy  a  certificate  of  origin,  the  court  erred  in  refusing  t® 
dfeftct  the  jury,  as  stated  in  the  second  bill  of  exceptions,  that  tf 
they  believed  said  evidence,  the  captain  was  justified  in  not  at- 
tempting to  enter  any  of  the  ports  of  the  countries  before  men- 
tioned, to  land  the  said  cargo;  and  that  in  proceeding  to  Huft, 
for  that  purpose,  he  fulfilled  the  contract  of  affreightment,  and 
entitled  the  owners  to  freight,  and  that  consequently  the  appel- 
lee was  not  entitled  to  recover;  because,  by  his  own  omission 
and  negligence,  he  had  prevented  the  appellants  from  proceed- 
ing to  any  of  the  said  ports. 

3.  On  the  third  bill  of  exceptions,  that  whatever  may  be  the 
legal  construction  of  the   contract,  this  being  an.  action  for 
money  had  and  received,  the  jury  had  a  right  to  take  into  their 
consideration,  all  the  equitable  circumstances  disclosed  by  the 
evidence,  and  to  find  a  verdict  for  the  appellants,  if  in  their 
opinion,  the  appellants  had  a  right  in  equity  and  good  con- 
science to  retain  the  money  received  as  freight,  even  though, 
had  it  not  been  received,  they  would  not  have  been  entitled  to 
recover  it,  in  an  action  against  the  appellee,  upon  the  contract 
of  affreightment. 

4.  On  the  fourth  bill  of  exceptions,  that  the  court  below 
erred  in  refusing  the    direction    therein    prayed;    because, 
although  the  contract  is  admitted  to  extend  to  every  part  of 
the  continent  of  Europe  whatsoever,  still  Peter  Wirgman  hav- 
ing been  constituted  by  the  appellee,  as  his  special  agent,  in  a 
certain  emergency,  if  the  jury  believed  such  emergency  to 
have  occurred  in  point  of  fact,  then  Peter  Wirgman,  as  such 
special  agent,  had  a  right  to  alter  the  destination  of  the  goods 
of  the  appellee,  within  the  limits  of  the  contract;  and  having 
actually  done  so  by  proceeding  to  Hull,  and  there  accepting 
that  part  of  the  cargo  which  belonged  to  the  appellee,  he  en- 
titled the  appellants  to  freight,  and,  therefore,  prevented  the 
appellee  from  recovering  in  this  action* 


OF  MARYLAND.  157 


Wirgman's  Adm'rs  vs.  Mactier — 1829. 


1.  On  the  first  bill  of  exceptions.  The  question  is,  whether 
the  charter  party  or  the  letter  or  agreement  of  the  14th  of 
May,  was  the  contract  between  the  parties  to  this  suit.  A 
parol  agreement  inconsistent  with  one  under  seal,  cannot  be  set 
up  against  the  agreement  under  seal.  3  Stark.  Evid.  1002. 
White  vs.  Parkin,  12  East.  578,  583.  Wood  vs.  Day,  7  Taunt. 
646,  (2  Serg.  $  Lowb.  247.)  Mbott  on  Shipping,  454.  The 
agreement  of  the  14th  of  May,  is  repugnant  to  the  charter 
party.  The  charter  party  stipulates,  that  the  cargo  might  be 
landed  at  Sylt;  and  the  agreement  of  the  14th  of  May,  is,  that 
the  cargo  should  not-»be  landed  at  Sylt.  If  the  agreement  of 
the  1 4th  of  May,  did  not  control  the  charter  party,  was  the 
construction  given  to  that  agreement,  consistent  with  the  char- 
ter party?  Com.  on  Cont.  23,  24,  25,  (Ed.  1824.)  The  con- 
tract originally  stood  alone  on  the  bill  of  lading.  The  charter 
party,  in  fact,  was  not  executed  until  the  14th  of  May.  The 
ports  in  the  Baltic  and  North  Seas  only  were  in  the  contem- 
plation of  the  parties;  no  other  construction  can  be  given  to 
their  agreements.  The  construction  of  general  expressions  in 
agreement  is  to  be  restrained.  6  Bac.  Jib.  tit.  Statute,  381. 
Jldams  vs.  Woods,  2  Crunch,  341. 

2.  On  the  second  bill  of  exceptions.     It  was  the  duty  of  the 
plaintiff  below,  to  provide  certificates  of  origin  of  his  part  of 
the  cargo,  required  by  the  municipal  regulations  of  the  coun- 
tries mentioned  in  this  exception.     He  had  covenanted  by  the 
charter  party  to  do  so. 

3.  On  the  third  bill  of  exceptions.     The  first  count  in  the 
declaration  is  for  money  had  and/received.     It  is  an  equitable 
count;  and  the  defendants  are  entitled  in  equity  and  good  con- 
science, to  retain  the  money  received  by  P.  Wirgman.    The 
plaintiff  cannot  go  into  the  original  liability  of  the  party. 

Scott,  for  the  appellee,  referred  to  the  decision  of  this  court 
on  the  former  trial  in  this  case,  as  reported  in  4  Harr.  fy  Johns. 
568,  and  to  the  argument  of  the  counsel  as  taken  in  manuscript, 
but  not  reported,  to  show  that  what  has  been  relied  on  by  the 
counsel  for  the  appellants  now,  was  not  then  insisted  on.  1.  On 


I S6          CASES  IN  THE  COURT  OF  APPEALS 

\\  ir.;m;m's  Adm'rs  vs.  Macticr. — 1829. 

the  first  bill  of  exceptions,  he  cited  Pow.  on  Cont.  370,  371. 
L\  ( >n  the  second  bill  of  exceptions,  be  stated  tbat  more  than  four- 
teen years  had  elapsed  between  the  transaction  and  the  last  trial, 
so  that  it  could  not  be  proved  u  hcthcr  or  not  the  captain  was 
furnished  with  the  necessary  certificates.  The  objection  raised 
at  the  last  trial,  had  not  been  urged  at  the  former  one,  or  the 
necessary  proof  might  have  been  then  procured.  There  was 
no  evidence  adduced  that  the  vessel  was  prevented  from  entry 
into  any  of  the  ports,  because  of  the  want  of  the  certificate. 
She  had  been  captured,  but  was  acquitted  at  one  of  the  ports. 
3.  On  the  third  bill  of  exceptions,  he  Cited  2  Com.  on  Cont. 
part  3,  Ch.  6,  Jim.  Reg.  21. 

Tancy  (Attorney  General  of  Maryland)  on  the  same  side. 
1.  On  \\iejirst  bill  of  exceptions.  This  court  in  the  former  case, 
decided  that  the  parties  could  make  a  contract  different  from 
the  charter  party,  as  to  the  separate  property  of  any  of  the* 
shippers.  The  charter  party  was  a  mere  formal  paper.  It 
was  not  delivered,  and  no  action  could  be  supported  on  it.  It 
was  executed  for  no  other  purpose,  but  as  necessary  to  make 
the  ship's  papers  regular.  It  cannot  be  the  deed  of  the  parties, 
unless  it  was  intended  as  such.  Com.  on  Cont.  25,  27,  28. 
JMoorson  vs.  Page,  4  Campb.  103.  5  Petersdorff,  363,  367, 310, 
372,  350,  351,  371.  Barker  vs.  Hodgson,  3  Maule  #  Selw, 
267.  2  Barnw.  #  Md.  17.  Hadky  vs.  Clarke,  8  T.  R.  259. 
Smith  vs.  Wilson,  8  East.  437.  Touteng  vs.  Hubbard,  3  Bos. 
fy  Pull.  295  (note.) 

2.  On  the  second  bill  of  exceptions.  The  jury  were  not  the 
judges  of  the  written  decrees  of  foreign  countries.  The  con- 
struction of  those  decrees  was  for  the  court,  and  not  for  the 
jury.  Etting  vs.  Bank  of  United  States,  10  IVheat.  50.  Did 
any  of  the  decrees  prevent  the  entry  of  the  vessel,  unless  she 
had  a  certificate  of  the  origin  of  the  cargo?  The  captain  was 
not  bound  to  sail  without  the  certificate,  if  it  was  necessary. 
Is  it  a  paper  of  the  cargo  or  of  the  vessel  ?  Mbott  on  Shipping, 
260, 261.  Who  was  to  prove  that  the  certificate  was  on  board 
of  the  vessel  ?  If  the  captain  was  to  prove  that  it  was  not  on 


OF  MARYLAND.  159 


Wirgman's  Adm'rs  t?s.  Mactier. — 1829. 


board,^then  he  did  not  prove  that  fact.  It  is  to  be  presumed  to 
have  been  on  board  of  the  vessel.  It  was  not  in  the  power  of 
the  plaintiff  to  prove  that  it  was  on  board,  as  it  was  in  the 
possession  of  the  captain.  The  captain  did  not  attempt  to  enter 
the  port,  but  sets  up  an  excuse  for  not  attempting  it.  He  was 
then  bound  to  prove  why  he  did  not.  Van  Omeron  vs.  Donrick, 
2  Camb.  42.  Tarleton  vs.  Jl/'  Gauley,  Peakes  JV.  P.  Cas.  205. 

3.  On  the  third  bill  of  exceptions.     The  jury  are  not  to 
decide  what  is  equity  and  good  conscience.    Hunter  vs.  Princep. 
10  East.  378. 

4.  On  the  fourth  bill  of  exceptions.     There  is  no  legal  evi- 
dence of  the  fact  that  the  vessel  was  ordered  away  from  Flek- 
kcfiord.     It  was  only  the  declarations  of  the  pilot,  which  are 
not  evidence. 


tj  in  reply.  1  .  The  construction  attempted  and  insisted 
on  by  the  counsel  of  the  appellee,  is,  that  there  were  two 
agreements  —  one  between  the  ship  owners  and  the  appellee, 
and  the  other  between  them  and  the  other  shippers.  There  is 
a  sealed  instrument  and  an  unsealed  instrument,  inconsistent 
with  each  other.  Which  is  to  give  the  law  of  the  contract  ? 
Can  an  agreement  under  seal  be  revoked  by  an  agreement  not 
under  seal  ?  The  authorities  already  cited  on  the  part  of  the 
appellants  are  admitted  ;  but  it  is  said  that  this  court  decided 
the  question  on  the  former  trial.  That  question  was  not  before 
this  court  on  the  former  appeal,  as  to  the  comparative  dignity 
of  the  two  instruments.  General  expressions  found  in  a  statute 
are  to  give  way  to  the  intention  fof  the  legislature.  1  Blk. 
Com.  87.  Com.  on  Cont.  533.  IVoods  vs.  Fulton  $•  Stark,  2 
Harr.Sf  Gill,  71. 

2.  If  the  court  were  not  called  on  to  expound  the  decrees  of 
the  foreign  countries  offered  in  evidence,  then  the  jury  were 
the  judges  of  both  the  law  and  the  fact.  But  the  jury  were 
not  required  to  expound  the  decrees  at  all.  The  question  put 
to  the  jury  was,  if  they  believed  that  agreeably  to  the  decrees, 
the  ports  of  the  countries  were  closed  as  to  uncertified  colonial 
produce,  and  there  was  no  certificate,  &c.  then  Wirgman  was 


160         CASES  IN  THE  COURT  OF  APPEALS 

Wirgman's  Adm'rs  vi.  Mactier — 1829. 

justified  in  going  to  England.  The  certificate  was  necessary 
for  the  safety  of  the  cargo,  but  not  for  the  vessel.  The  owner 
of  the  vessel  could  not  know  whence  the  cargo  came;  that  was 
in  the  knowledge  of  the  freighters.  Holt  on  Skipping,  81. 
Levy  vs.  Costerton. — HoWs  Rep.  170.  The  plaintiff'  was  bound 
to  prove  that  the  certificate  was  on  board  of  the  vessel.  He 
might  have  proved  by  the  consul  at  Baltimore,  that  he  had  ob- 
tained the  certificate  required.  How  could  Wirgman  prove 
that  it  was  not  on  board  ?  He  could  not  prove  a  negative.  But 
it  has  been  insisted,  that  it  is  to  be  presumed  that  all  necessary 
papers  were  on  board,  and  Van  Omeron  vs.  Dmcick,  2  Campb. 
42,  was  relied  on  for  that  purpose.  In  that  case  it  was  the 
officer  of  the  same  country,  and  it  was  presumed  he  did  his 
duty.  It  has  nothing  to  do  with  the  case  now  before  this  court. 
The  case  of  Tarleton  vs.  M-  Gawky,  Peakes  JV.  P.  Cos.  205, 
is  not  applicable  to  the  present  question. 

4.  On  the  fourth  bill  of  exceptions,  he  referred  to  Drake  vs. 
Hudson  $  Franciscus,  1  Hair.  $  Johns.  399. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  assumpsit  brought  to  recover  a  sum  of 
money  retained  by  Charks  #  Peter  Wirgman,  who  were  the 
owners  of  the  ship  William  Wilson,  on  account  of  freight,  out 
of  the  proceeds  of  that  part  of  the  cargo,  shipped  on  board  that 
ship,  which  belonged  to  the  appellee;  and  the  question  is, 
whether  freight  was  earned  or  not. 

Four  bills  of  exceptions  were  taken  at  the  trial.  The  ap- 
pellee who  was  the  plaintiff  below,  offered  to  prove,  that  the 
ports  of  Constantinople  on  the  Dardanelks,  of  Salonica  on  the 
Morea,  and  of  Gibraltar,  all  on  the  continent  of  Europe,  were 
in  the  year  1810,  open  to  American  vessels  loaded  with  colonial 
produce,  an  objection  to  the  admissibility  of  which  testimony, 
made  on  the  part  of  the  appellants,  was  overruled  by  the  court. 
This  forms  the  subject  of  the  first  bill  of  exception,  and  involves 
the  construction  of  the  contract,  between  the  appellee  and 
Charks  fy  Peter  Wirgman. 


OF  MARYLAND.  161 


Wirgman's  Adm'rs  vs.  Mactier. — 1829. 


It  is  stipulated  in  the  charter  party,  that  the  master  shall  pro- 
ceed with  the  ship  from  Baltimore  for  the  island  of  Sylt ;  "  and 
if,  on  arrival  there,  it  can  be  ascertained  that  the  ports  of  Ham- 
burg and  Bremen  are  open  to  the  admission  of  American  ves- 
sels, that  the  said  master  shall  forthwith  proceed  to  which- 
soever the  said  ports,  the  supercargo  and  himself  shall  think 
most  for  the  interest  of  the  freighters.  But  should  the  said 
ports  of  Hamburg  and  Bremen  continue  closed,  then  the  said 
cargo  shall  be  landed  at  Sylt  if  permitted ;  and  in  case  of  refu- 
sal to  permit  the  same  to  be  landed  at  Sylt,  that  then  the  said 
master  shall  proceed  therewith  to  such  permitted  port  on  the 
North  Sea  or  the  Baltic,  as  he  and  the  supercargo  shall  order  and 
direct.  And  should  the  Baltic  be  also  closed  against  the  admis- 
sion of  American  vessels,  in  such  case  the  said  master  shall  pro- 
ceed with  the  said  cargo  to  such  other  port,  as  he  and  the  said 
supercargo  may  in  their  discretion  think  most  proper.  And  that 
on  the  arrival  of  the  said  ship  at  the  port  of  delivery,  the  said 
master  shall  and  will  make  a  right  and  true  discharge  of  the 
said  cargo,  to  the  supercargo,  or  to  such  other  agent,  factor  or 
consignee  of  the  freighters,  as  they  may  direct,  agreeably  to 
the  bills  of  lading  to  be  signed  for  the  same,  and  so  end  and  fin- 
ish the  said  intended  voyage,  &c."  and  the  freighters  covenant 
to  "pay  freight  for  said  cargo  agreeably  to  bills  of  lading  to  be 
signed  for  the  same,  provided  the  said  cargo  be  discharged  at 
a  port  in  the  North  Sea ;  but  if  delivered  at  any  port  in  the 
Baltic,  not  higher  than  Kiel  or  Colberg,  then  &c.  to  pay  unto 
the  owners  an  advance  of  &c.  on  the  amount  of  freight  money 
stipulated  in  the  said  bills  of  lading.  If  higher  than  Kiel  or 
Colberg,  and  not  higher  than  Koningsburg,  a  like  advance  of 
&c.  and  if  higher  than  Koningsburg  a  like  advance  of  &c.,  and 
should  the  Baltic  be  shut,  a  further  advance  to  be  settled  by  ar- 
bitration, &c." 

This  is  not  an  action  upon  the  charter  party,  and  it  is  not  per- 
haps necessary  to  inquire  what  would  be  the  proper  construc- 
tion of  that  instrument  if  it  stood  alone.     But  taken  together 
with  the  bill  of  lading,  to  which  it  refers,  it  seems  very  clear 
VOL.  I.— 21. 


163         CASES  IN  THE  COURT  OF  APPEALS 

Wirgman's  Adm'ra  rs.  Mactier. — 1829. 

that  the  permitted  port  contemplated,  was  a  port  in  the  North 
Sea  or  the  Bailie. 

One  of  the  stipulations  in  the  charter  party  is,  that  in  case  of 
a  refusal  to  permit  the  cargo  to  he  landed  at  Sylt,  the  master 
shall  proceed  therewith  to  such  permitted  port  in  the  North 
Sea  or  the  Baltic,  as  he  and  the  supercargo  shall  order  and  di- 
rect. And  another  is,  that  on  the  arrival  of  the  ship  at  the 
port  of  delivery,  the  master  shall  discharge  the  cargo,  to  the 
supercargo,  or  to  such  other  agent,  &c.  of  the  freighters,  as 
they  may  direct,  agreeably  to  the  bills  of  lading  to  be  signed 
for  the  same,  and  so  end  and  finish  the  said  intended  voyage, 
with  a  covenant  by  the  freighters  to  pay  freight  agreeably  to 
the  bills  of  lading  to  be  signed.  And  the  bill  of  lading  for  the 
goods  of  the  appellee,  states  the  ship  to  be  bound  from  Balti- 
more for  Sylt  and  a  permitted  port  in  the  North  Sea  or  Baltic, 
and  that  the  goods  are  to  be  delivered  at  such  permitted  port, 
unto  Messrs.  David  Parish  fy  Co.  Hamburg,  or  their  assigns,  he 
or  they  paying  freight,  &c.  at  certain  stipulated  rates. 

Here  then  is  a  charter  party,  in  which  the  owners  engage  to 
deliver  the  cargo  at  a  permitted  port  in  the  North  Sea,  or  the 
Baltic,  to  the  agent  of  the  freighters,  agreeably  to  the  bills  of 
lading  to  be  signed,  and  so  to  end  the  intended  voyage ;  and 
the  freighters  to  pay  freight  agreeably  to  the  bills  of  lading, 
with  certain  stipulated  advances. 

And  a  bill  of  lading  of  the  goods  of  the  appellee,  in  which, 
they  are  contracted  to  be  delivered  at  a  permitted  port  in  the 
North  Sea,  or  the  Baltic,  to  Messrs.  Parish  fy  Co.  Hamburg, 
or  their  assigns,  at  certain  rates  of  freight  therein  mentioned. 

So  far  then  as  concerns  the  goods  of  the  appellee,  it  is  a  con- 
tract for  the  delivery  of  them  at  a  permitted  port  in  the  North 
Sea,  or  the  Baltic,  to  the  Messrs.  Parish  fy  Co.  Hamburg,  or 
their  assigns,  at  the  rate  of  freight  mentioned  in  the  bill  of  la- 
ding, and  the  advances  stipulated  in  the  charier  party,  and  the 
ending  of  the  voyage  by  such  a  delivery  of  the  goods  at  such  per- 
mitted port.  The  charter  party  by  the  references  to  the  bills  of 
lading,  in  the  provisions  for  the  delivery  of  the  cargo  to  the  agent 
of  the  freighters,  "agreeably  to  the  bills  of  lading  to  be  signed," 


OF  MARYLAND.  163 


Wirgman's  Adm'rs  vs.  Mactier — 1829. 


and  the  payment  of  freight  "  agreeably  to  the  bills  of  lading  to 
be  signed,"  adopted,  and  made  a  part  of  it,  the  stipulation  in  the 
bill  of  lading  of  the  appellee's  goods,  for  the  delivery  of  them  at 
a  permitted  port  in  the  North  /Sea,  or  the  Baltic,  to  the  Messrs. 
Parish  fy  Co.  Hamburg,  or  to  their  assigns,  and  for  the  payment 
of  freight ;  and  is  the  same,  as  if  instead  of  referring  to  the 
bills  of  lading,  it  had  expressly  stipulated,  that  the  master  should 
deliver  the  goods  of  the  appellee,  at  a  permitted  port  in  the 
North  Sea,  or  Baltic,  unto  Messrs.  David  Parish  fy  Co.  Ham- 
burg, or  to  their  assigns,  for  the  freight  mentioned,  and  so  end 
and  finish  the  said  intended  voyage ;  that  is,  to  end  and  finish 
the  voyage,  as  respected  the  interest  of  the  appellee,  by  a 
delivery  of  his  goods  to  the  Messrs  Parish  &  Co.  or  their  assigns, 
at  a  permitted  port  in  the  North  Sea  or  Baltic. 

There  were  a  number  of  persons  interested  in  the  cargo  be- 
sides the  appellee ;  and  the  different  provisions  in  the  charter 
party,  with  the  engagement  to  deliver  the  cargo  agreeably  to 
the  bills  of  lading,  (in  the  plural,)  were  probably  introduced  to 
meet  the  views  and  interests  of  the  several  shippers,  according 
to  the  stipulations  of  their  respective  bills  of  lading,  and  what- 
ever latitude  may  have  been  given  in  any  of  the  other  bills  of 
lading,  that  for  the  goods  of  the  appellee,  limited  the  contract  in 
relation  to  them  to  a  port  in  the  North  Sea,  or  Baltic,  and  sure- 
ly the  parties  were  competent  so  to  contract. 

Then  comes  the  memorandum  or  agreement  of  the  14th  of 
May,  1810,  entered  into  by  the  owners,  which  is  in  these  words: 
"We  hereby  agree  and  acknowledge,  that  the  sundry  goods 
shipped  by  you  on  board  the  ship/  William  Wilson,  Peter  Wirg- 
man,  master,  are  to  be  landed  iii  a  permitted  port  on  the  conti- 
nent of  Europe,  (meaning  that  they  are  not  to  be  landed  on  the 
Island  of  Sylt,)  before  the  freight  is  earned.  But  should  the 
whole  of  the  continent  be  shut,  the  freight  with  an  addition,  (as 
arbitrators  may  determine,)  will  be  earned,  should  the  property 
be  landed  in  England,  agreeable  to  the  custom  of  the  country." 
And  this  agreement  k  supposed  so  to  alter  and  control  the  voy- 
age, as  to  extend  the  contract  between  the  Wirgmans  and  the 
appellee  to  any  port  on  the  continent  of  Europe. 


IM          CASES  IN  THE  COURT  OP  APPEALS 

Wirgman'a  Adm'rs  vs.  Mactier — 1829. 

This  cause  was  once  before  in  this  court,  on  an  appeal  from 
the  judgment  of  the  Baltimore  County  Court,  and  on  a  reversal 
of  that  judgment,  was  sent  back  under  a  procedendo — and  it  is 
probable  that,  that  court  has  been  misled  by  the  loose  language 
of  the  opinion  delivered  on  that  appeal,  and  has  supposed,  that 
the  contract  of  the  parties  was  held  by  this  court,  to  relate  not 
merely  to  ports  in  the  North  Sea  or  the  Baltic,  but  to  any  port 
on  the  continent  of  Europe,  no  matter  where,  or  in  what  sea,  aa 
is  now  insisted  upon  here.  And  perhaps,  looking  to  the  opinion 
alone,  that  would  be  its  construction;  but  it  was  certainly  not 
so  intended.  Having  delivered  the  opinion  myself,  I  can  speak 
confidently  on  the  subject,  and  regret  that  it  was  not  delivered 
in  more  guarded  and  restricted  terms. 

But  the  idea,  that  the  contract  looked  for  the  destination  of 
that  part  of  the  cargo  at  least,  which  belonged  to  the  appellee, 
to  any  permitted  port  on  the  continent  of  Europe,  other  than  a 
port  on  the  North  Sea  or  Baltic,  was  not  suggested  in  the  ar- 
gument, which  was  particularly,  and  with  great  force,  directed 
to  the  political  state  of  affairs  in  Europe,  in  reference  to  what 
was  commonly  called  the  continental  system,  and  the  advanced 
and  inclement  season  of  the  year,  which  it  was  contended  for- 
bid an  attempt  by  the  masterTto  navigate' the  Baltic;  and  with 
the  danger  of  capture  and  detention  by  privateers,  justified  his 
proceeding  to  Hull,  and  there  delivering  the  cargo.  The  whole 
course  of  the  argument  which  was  a  very  elaborate  one,  pointed 
to  a  state  of  tilings  having  no  connexion  with,  or  relation  to, 
other  ports  on  the  continent  of  Europe,  not  in  the  North  Sea  or 
Baltic.  The  question  whether  the  contract  contemplated  any 
other  permitted  port  on  the  continent  of  Europe,  than  one  in  the 
North  Sea  or  the  Baltic,  was  not  raised,  nor  thought  of  by  the 
court,  at  least  by  myself;  but  looking  only  to  those  seas,  and 
construing  the  engagements  between  the  parties,  with  reference 
to  the  known  state  of  affairs  in  Europe,  as  likely  to  operate  upon 
the  governments  on  the  continent,  having  ports  in  those  seas,  and 
not  the  governments  without  the  influence  of  that  state  of  things, 
and  having  ports  in  other  seas,  the  broad  terms,  the  whole  of 
the  ports  on  the  continent  of  Europe,  to  be  found  in  the  opinion 


OF  MARYLAND.  165 


Wirgman's  Adm'rs  vs.  Mactier. — 1829. 


delivered,  were  too  carelessly  perhaps  taken  from  the  agree- 
ment, and  were  not  meant  to  be  used  with  reference  to  all  the 
ports  of  the  continent,  no  matter  where. or  in  what  seas,  as  the 
ports  intended  by  the  contract,  at  some  one  of  which  the  goods 
were  to  be  delivered,  before  freight  could  be  earned :  but  to 
the  ports  only  on  the  continent  of  Europe,  in  the  North  Sea  or 
the  Baltic,  according  to  the  subject  matter  then  in  the  view  of 
the  court.  And  that  we  think,  is  the  only  legitimate  construc- 
tion that  can  be  given  to  the  papers  at  that  time,  as  now 
before  us. 

Looking  to  the  historical  facts  and  occurrences  of  the  time, 
to  which  we  may  judicially  look,  and  cannot  well  shut  our  eyes 
against  them,  it  is  manifest  that,  the  voyage  was  undertaken,  and 
the  charter  party,  the  bill  of  lading,  and  the  agreement  entered 
into,  with  a  view  to  the  political  state  of  affairs  in  Europe,  and 
should  be  construed  with  a  view  to  that  state  of  affairs ;  and  so 
interpreted,  it  is  not  difficult  to  perceive,  that  the  permitted  port 
on  the  continent  of  Europe,  in  which  the  goods  were,  by  the 
agreement  to  be  landed  before  freight  could  be  earned,  was  in- 
tended to  be  a  permitted  port  in  the  North  Sea  or  the  Baltic  ; 
other  ports  on  the  continent  of  Europe,  such  as  Constantinople, 
the  ports  in  the  Morea  and  Gibraltar  not  being  affected  by  the 
system,  the  state  of  things,  in  the  view  of  the  parties,  and  the 
ports  of  the  continent  in  the  North  Sea  and  the  Baltic  being; 
alone  within  their  influence. 

The  question  is  not  what  would  be  the  correct  construction  of 
the  agreement  of  the  14th  of  May,  1810,  if  it  stood  alone,  with- 
out any  index  pointing  to  the  intention  of  the  parties,  that  could 
be  properly  looked  to ;  or  any  tiling  in  the  context,  to  restrict 
the  understanding  of  the  general  terms  used^  according  to  their 
plain  and  popular  meaning,  to  a  mere  special  and  peculiar  sense; 
but  it  is  apparent  that,  that  agreement  relates  to  the  voyage, 
contemplated  by  the  charter  party  and  bill  of  lading  of  the  ap- 
pellee's goods,  and  the  acknowledgment  that  they  are  to  be 
landed  in  a  permitted  port  on  the  continent  of  Europe,  before 
freight  is  earned,  has  reference  to,  and  so  far  recognizes  the  con- 
tract arising  from  those  instruments,  and  should  therefore  be 


1GO         CASES  IN  THE  COURT  OF  APPEALS 

:uan's  Adm'rs  vs.  Macticr. — 1829. 

construed  in  connexion  with  them,  and  that  contract,  looking  for 
the  destination  of  the  appellee's  goods,  to  a  permitted  port  in  the 
North  Sea  or  Baltic,  the  agreement  speaking  in  relation  to  that 
contract/must  be  understood,  by  the  terms  "on  the  continent  of 
Europe"  to  mean  on  the  continent  of  Europe,  in  the  North  Sea 
or  Baltic,  and  to  have  used  those  terms  only  for  the  purpose  of 
showing,  that  the  goods  were  to  be  landed  on  the  continent,  as 
distinguished  from  the  Island  of  Sylt,  and  that  interpretation  is 
given  to  it,  by  the  clause  immediately  following  in  the  agreement 
itself,  "  meaning  that  they  are  not  to  be  landed  on  the  Island  of 
Sylt,"  that  is,  that  the  terms  "  on  the  continent  of  Europe"  mean 
not  on  the  Island  of  Sylt,  or  denote,  that  they  were  not  to  be 
landed  on  the  Island  of  Sylt,  but  on  the  continent  only,  before 
freight  could  be  earned,  and  were  used  for  that,  and  no  other 
purpose.  And  the  words  in  the  last  clause,  "  but  should  the 
whole  of  the  continent  be  shut,"  have  reference  to  what  goes 
before,  and  must  be  construed  to  mean  the  continent,  in  the  same 
restricted  sense,  in  which  it  is  before  spoken  of,  that  is,  the 
whole  of  .the  continent  of  Europe  on  the  North  Sea  and  Baltic — 
and  cannot  mean  any  part  of  the  continent,  not  contemplated  in 
the  preceding  part  of  the  agreement.  Under  this  construction 
of  the  agreement,  taken  in  connexion  with  the  charter  party  and 
till  of  lading  to  which  it  relates,  the  contract  between  the  par- 
ties is,  that  the  goods  shipped  by  the  appellee  shall  not  be  land- 
ed on  the  Island  of  Sylt,  but  at  some  permitted  port  on  the  con- 
tinent of  Europe  in  the  North  Sea  or  Baltic,  before  any  freight 
shall  be  earned ;  but  in  the  event  of  the  whole  of  the  ports  on 
the  continent  of  Europe  in  the  North  Sea  and  Baltic  being  shut, 
then,  and  not  otherwise,  the  owners  shall  be  entitled  to  freight 
on  the  goods  being  landed  in  England,  with  a  stipulated  ad- 
dition. 

The  ports  of  Constantinople,  on  the  Dardanelles  of  Salonica, 
in  the  Morea,  and  of  Gibraltar,  were  not  the  permitted  ports 
contemplated  by  the  contract;  proof  therefore  of  their  being 
open  in  the  year  1&10,  to  American  vessels  loaded  with  colonial 
produce,  was  irrelevant  and  inadmissible,  and  the  testimony  of 
John  Donnell  ought  to  have  been  rejected. 


OF  MARYLAND.  167 


Wirgman's  Adm'rs  vs.  Mactier. — 1829. 


By  the  term  shut,  as  used  in  the  contract,  is  meant  an  occlu- 
sion by  the  municipal  regulations  of  the  country,  and  unless  in 
that  sense  of  the  term,  all  the  ports'  on  the  continent  of  Europe 
in  the  North  Sea  and  Baltic  were  closed  against  the  admission 
of  the  goods  of  the  appellee,  on  board  the  ship  William  Wilson, 
the  vessel  could  not  earn  freight  by  going  to  England;  nor 
then,  unless  the  instructions  given  by  the  appellee  in  his  letter 
of  the  8th  of  May,  1810,  to  Peler  Wirgman,  the  master,  were 
complied  with. 

It  has  been  contended,  that  if  agreeably  to  the  orders  and 
decrees  of  France,  Prussia,  Russia,  Sweden  and  Denmark,  all 
uncertificated  colonial  produce  was  prohibited  from  entry  into 
any  of  the  ports  on  the  continent,  in  the  North  Sea  or  Baltic. 
It  was  incumbent  on  the  appellee  to  have  furnished  the  captain 
of  the  ship  with  a  certificate  of  origin  of  that  part  of  the  cargo 
which  belonged  to  him;  and  that  if  he  neglected  to  do  so,  the 
captain  fulfilled  the  contract  of  affreightment  by  proceeding  to 
Hull,  and  there  delivering  the  cargo.  But  we  think  otherwise, 
and  that  the  want  of  such  a  document  alone,  was  not  sufficient 
to  justify  the  captain  in  proceeding  to  Hull,  and  there  deliver- 
ing the  appellee's  goods.  All  parties  were  aware  of  the 
unsettled  state  of  affairs  in  Europe,  and  the  difficulties  that 
would  probably  attend  the  landing  of  the  cargo  at  any  of  the 
contemplated  ports  in  the  North  Sea  and  Baltic.  The  charter 
party  and  bill  of  lading  show  it;  the  agreement  and  letters  of 
instruction  prove  it.  The  goods  were  shipped,  and  the  voyage 
undertaken,  with  the  expectation  of  having  risks  and  difficulties 
to  encounter,  and  the  contract  /and  instructions  were  framed 
accordingly.  The  ship  owner^  knew  when  they  signed  the 
agreement,  which  was  subsequent  to  the  bill  of  lading,  that  no 
certificate  of  origin  waS  on  board,  and  with  that  knowledge, 
and  a  knowledge  of  the  character  of  the  cargo,  made  their 
engagement  with  a  view  to  the  difficulties  that  might  attend  the 
landing  of  such  a  cargo,  under  such  circumstances ;  and  can  no 
more  avail  themselves  of  the  want  of  that  document,  because  of 
the  prohibition  merely  of  uncertificated  colonial  produce,  than 
they  could  have  done  of  the  fact,  that  the  cargo  consisted  of  co- 


H58         CASES  IN  THE  COURT  OF  APPEALS 

U  adman's  AdnTrs  vs.  Mactier. — 1829. 

lonial  produce,  if  the  prohibition  hail  been  of  all  such  produce, 
uncertificated  or  otherwise.     If  in  the  latter  case,  they  could  not 
have  sheltered  thcmsi-lves  under  the  pretext  alone,  that  the 
cargo  consisted  of  colonial  produce,  and  was  therefore  pro- 
hibited from  entering  any  of  the  contemplated  ports,  having 
made  their  contract  in  relation  to  such  a  cargo;  neither  can 
they  in  this  case,  avail  themselves  of  the  circumstance  alone, 
that  the  appellee's  part  of  the  cargo  consisted  of  uncertificated 
colonial  produce,  and  was  therefore  prohibited,  having  made 
their  contract  in  relation  to  goods  in.  that  known  predicament. 
The  same  reason  would  seem  to  apply  itt  one  case,  as  in  the 
other;  the  prohibition  in  both  being  of  the  goods  on  board. 
In  one,  of  goods  without  a  certificate  of  origin;  in  the  other, 
either  with  or  without  such  a  certificate,  and  there  is  no  evi- 
dence in  the  cause  to  show  that  it  was  incumbent  on  the  appellee 
to  have  provided  such  a  paper,  to  enable  him  to  resist  the  claim 
of  the  ship  owners  to  freight,  or  that  he  was  required  to  do  so. 
The  shipment  was  made  on  a  calculation  of  chances,  and  the 
knowledge,  advice  and  assistance  of  the  ^Messrs.  Parish  fy  Co. 
Hamburg,  were  evidently  much  relied  upon  for  the  success  of 
the  enterprise.     And  to  obtain  the  benefit  of  their  counsel  and 
assistance,  the  appellee,  in  his  letter  of  instructions  to  Peter 
H'irgmdn,  the  master,  informs  him,  that  he  had  requested  them 
to  consult  with  him  on  the  further  destination  of  the  ship,  and 
the  disposal  of  his  interest  on  board,  in  the  event  of  an  entry 
being  denied  at  Hamburg;  directing  him  to  advise  with  them, 
as  to  what  was  best  to  be  done  for  his  interest ;  and  constituting 
him  his  agent,  if  the  state  of  a  flairs  should  be  such  as  to  prevent 
his  communicating  with  them ;  in  which  case,  he  tells  him  to 
open  his  letter  of  instructions  to  them,  to  which  lie  refers  him 
for  his  government.     These  instructions  the  master  was  bound 
to  obey;  it  was  his  duty  diligently  to  seek  and  to  pursue  the 
advice  and  directions  of  Messrs.  Parish  <$'  Co.  and  if  agreeably 
to  the  orders  and  decrees  of  the  governments  of  .France,  Pnissia, 
Russia,  Denmark  and  Sweden,  the  goods  of  the  appellee  were 
prohibited  from  entering  the  ports  on  the  continent  of  Europe, 
in  the  North  Sea  and  Baltic,  yet  there  might  have  been  such 


OF  MARYLAND.  169 


Wirgman's  Adm'rs  rs.  Mactier. — 1829. 


occasional  suspensions  of  them,  or  relaxation  in  the  enforcement 
of  them,  as  to  render  the  information  and  advice  of  Messrs. 
Parish  ^  Co.  of  the  first  importance.  And  it  would  seem  to 
have  been  in  such  a  state  of  things,  that  the  appellee  wished 
to  have  the  benefit  of  their  superior  intelligence  and  advice, 
and  not  when  it  could  be  had,  to  trust  to  the  discretion  of  the 
master,  who  could  not  be  so  well  informed.  If  there  was  a 
port  on  the  continent  of  Europe,  in  the  North  Sea  or  Baltic, 
open  to  the  admission  of  the  appellee's  goods,  the  master  was 
bound  to  go  there,  before  freight  could  be  earned ;  it  was  the 
contract  of  the  owners  with  the  appellee,  and  he  had  a  right  to 
stand  upon  it.  And  the  master  could  not  entitle  them  to  freight 
by  going  to  England,  and  there  delivering  the  goods,  either 
contrary  to,  or  without  the  advice  of  Messrs.  Parish  fy  Co. 
unless  he  was  cut  off  from  all  communication  with  them  by  the 
unsettled  state  of  affairs  at  the  time.  What  then  was  the  course 
pursued  by  the  master?  In  his  letter  to  Messrs.  Parish  ^  Co. 
of  the  13th  of  July,  1810,  he  informed  them  of  the  capture  of 
the  ship  by  a  Danish  privateer,  and  that  he  was  taken  into  a 
Danish  port  for  adjudication;  spoke  of  his  having  property  on 
board  belonging  to  the  appellee,  and  asked  advice  and  informa- 
tion, but  said  nothing  of  the  consignment  of  the  goods  to  them. 
That  letter  does  not  appear  to  have  been  received.  In  his 
letter  of  the  14th  of  September,  1810,  he  informed  them,  that 
he  had  craved  their  advice  in  his  preceding  letter,  respecting 
his  future  destination,  but  added,  that  a  more  extensive  know- 
ledge of  prize  cases  induced  him  to  believe,  that  if  he  was  in 
possession  of  it,  it  would  be  of  no  advantage.  Thus  virtually 
dispensing  with  any  advice  from  them  upon  the  subject;  and 
upon  that  assumption  he  seems  to  have  acted,  as  there  is  nothing 
to  show,  that  he  ever  afterwards  sought  any  advice  or  informa- 
tion from  them  in  relation  to  the  destination  or  disposition  of  the 
appellee's  goods.  In  that  letter  he  advised  them,  that  a  consi- 
derable part  of  the  cargo  was  to  their  address,  without  saying 
to  whom  it  belonged,  or  giving  any  account  of  the  amount  or 
character  of  the  goods.  On  the  13th  of  October,  1810,  he 
received  an  answer  from  them  to  his  letter  of  the  14th  of  Sep- 
VOL.  1—22. 


170         CASES  IN  THE  COURT  OF  APPEALS 

i. HI'S  Adm'rs  vs.  Mactier. — 1829. 

tember,  dated  the  2d  of  October,  and  received  in  eleven  days 
after  it  was  written.  In  this  letter,  they  requested  him  to  inform 
them,  who  were  the  shippers  of  the  consignment  tp  their  ad- 
dress, and  to  forward  any  letters  he  might  have  for  them,  with 
any  other  information  that  might  be  useful,  suggesting  difficul- 
ties respecting  the  future  destination  of  the  ship,  in  the  event 
of  her  being  liberated,  but  that  there  was  time  enougli  to  cor- 
respond on  that  subject,  after  being  informed  of  the  cargo  on 
hand,  and  at  the  same  time  telling  him,  that  several  of  their 
friends  had  proceeded  from  Gottenburg  to  Carlsham,  there  to 
unload  their  cargoes,  &c.  On  the  14th  of  October  he  acknow- 
ledged the  receipt,  on  the  preceding  day,  of  that  letter,  inform- 
ed them  for  the  first  time  of  the  quantity  and  description  of  the 
goods  to  their  address,  and  that  they  were  shipped  by  the  ap- 
pellee, and  that  he  was  in  daily  expectation  of  his  sentence,  of 
which  they  might  depend  upon  being  immediately  advised.  On 
the  30th  of  October  they  answered  that  letter;  told  him  they 
were  anxiously  awaiting  the  result  of  the  proceedings  in  the 
court  of  prize;  referred  him  to  the  public  papers  for  the  late 
French  and  Danish  decrees,  and  told  him  that  under  existing 
circumstances,  it  was  difficult  to  point  out  a  proper  port  of  dis- 
charge, so  many  changes  were  taking  place,  but  that  if  any 
further  alterations  should  take  place,  they  would  keep  him  in- 
formed. In  his  letter  of  the  8th  of  November,  1810,  he  ad- 
vised them  of  the  liberation  of  the  vessel,  and  the  restoration 
of  his  papers,  on  the  5th  of  the  same  month,  by  sentence  of  the 
prize  court,  and  of  his  determination  to  discharge  the  cargo  at 
Flekkefiord,  where  the  ship  was  then  lying.  Thus  announcing 
his  determination  not  to  seek  or  await  any  instructions  or  advice 
from  them,  relative  to  the  disposition  of  the  cargo,  but  to  act 
upon  his  own  judgment.  And  on  the  10th  of  the  same  month, 
he  acknowledged  the  receipt  of  their  letter  of  the  30th  of  Oc- 
tober, eleven  days  after  it  was  written;  and  after  regretting  that 
it  contained  no  information  to  induce  him  to  alter  his  determina- 
tion to  unload  at  Fkkkefiord,  told  them  he  intended  to  com- 
mence doing  so  on  the  Wednesday  following — and  afterwards 
without  consulting  them  on  the  subject,  or  giving  them  any  inti- 


OF  MARYLAND.  171 


Wirgman's  Adm'rs  vs.  Mactier — 1829. 


mation  of  his  intention  to  do  so,  sailed  for  Hull,  where  he  un- 
loaded the  cargo. 

Resting  here,  there  is  not  a  tittle  of  evidence  to  show  a  com- 
pliance by  the  master,  with  his  instructions;  but  on  the  contra- 
ry, the  whole  of  it  has  the  opposite  bearing.  In  his  first  letter 
to  Messrs.  Parish  fy  Co.,  he  informs  them  of  the  capture  of  his 
ship;  in  his  second  he  tells  them,  that  his  knowledge  of  prize 
cases,  induces  him  to  believe  that  their  advice  in  relation  to  his 
future  destination,  would  be  of  no  advantage  to  him;  and  in  his 
third,  he  for  the  first  time,  (and  that  only  in  compliance  with 
their  request,  contained  in  their  answer  to  his  second  letter,) 
discloses  to  them,  the  quantity  and  description  of  the  goods  to  their 
address,  and  the  name  of  the  shipper — and  although  requested 
in  the  letter  to  which  that  is  an  answer,  to  forward  to  them  any 
information  that  might  be  useful,  and  also  told  that  it  will  be 
time  enough  to  correspond  on  the  subject  of  his  future  destina- 
tion, after  they  should  be  informed  by  him  of  the  goods  he  had 
on  hand,  he  neither  communicates  to  them  the  nature  of  his  in- 
structions, nor  asks  their  advice.  In  his  fourth,  he  announces 
to  them  the  restoration  of  the  ship  and  papers,  and  that  no  ap- 
peal was  made,  and  also  his  determination  to  discharge  the 
cargo  at  Flekkefiord.  But  it  does  not  appear,  that  he  forward- 
ed the  letters  of  instruction  to  them,  from  the  appellee  with 
which  he  was  entrusted,  notwithstanding  his  saying,  that  the 
papers  \iere  restored  to  him  on  the  5th  of  November,  and  their 
request  in  their  first  letter,  that  he  would  forward  any  letters 
he  might  have  for  them;  and  in  his  last  letter  to  them,  he  reiter- 
ates his  determination  to  unload/at  Flekkefiord,  and  tells  them 
that  lie  intends  commencing  it  ^011  the  Wednesday  following, 
though  they  had  before  suggested  to  him,  that  some  of  their 
friends  had  proceeded  from  Gottenburg  to  Carlsham,  there  to 
unload  their  cargoes;  and  speaking  of  the  frequent  changes 
that  were  occurring,  had  promised  in  their  letter  of  the  30th 
of  October,  to  keep  him  informed  of  any  changes  that  might 
take  place  in  the  state  of  affairs.  And  with  a  view  to  those 
frequent  changes,  that  very  unsettled  state  of  affairs  it  was, 
that  the  shipment  was  made,  and  his  instructions  given  him  to 


173         CASES  IN  THE  COURT  OF  APPEALS 

Wirgman'a  Adm'rs  rs.  Mactier. — 1829. 

consult  with,  and  be  governed  by  the  advice  of  the  Messrs, 
Parish  fy  Co.  But  having  as  early  as  the  14th  of  September, 
1810,  brought  his  mind  to  the  conclusion,  that  the  advice  of 
J/t\«m.  Parish  fy  Co.  would  be  of  no  service  to  him,  and  act- 
ing upon  that  assumption,  he  manifestly  determined,  not  to 
throw  himself  upon  them  for  information  or  instructions,  but  to> 
take  the  disposition  of  the  cargo  upon  himself.  And  he  dhi  do 
it,  regardless  of  their  suggestion,  that  some  of  their  friends  had 
proceeded  from  Gottenburg  to  Carlsham,  to  land  their  cargoes, 
their  promise  to  keep  him  informed  of  any  changes  that  might 
take  place  in  the  state  of  affairs,  and  their  intimation  of  a 
correspondence  to  be  opened,  after  they  should  be  informed! 
by  him  of  the  goods  on  hand,  all  which  was  before  the  vessel 
had  been  liberated;  his  advice  of  which  event  was  accompanied 
by  the  information,  that  he  had  determined  to  discharge  the  cargo 
at  Flekktfiord,  and  followed  two  days  after  by  the  information, 
that  he  should  begin  unloading  the  Wednesday  following,  with- 
out asking  any  advice  or  information  on  the  subject,  which,  ad- 
ded to  his  having  withheld  a  disclosure  of  his  own  instructions, 
and  neglected  to  forward  the  letters  of  instruction  to  them  from 
the  appellee,  and  thus  kept  them  in  a  state  of  ignorance  that  he 
was  placed  under  their  direction,  was  calculated  to  induce  the 
belief,  that  he  was  acting  by  authority,  seeing  that  he  withheld 
himself  from  all  furtlier  communication  with  them,  and  suffi- 
ciently accounts  for  their  not  writing  to  him  again,  in  the  ab- 
sence of  proof  of  any  other  cause. 

If  at  the  time  of  the  liberation  of  the  William  Wilson,  all 
the  ports  of  the  continent  of  Europe  on  the  North  Sea  and 
Baltic,  were,  in  fact,  closed  by  municipal  regulations,  against 
the  admission  of  a  vessel  and  cargo  in  her  predicament,  and 
she  was  expelled  from  the  ports  of  JVorzmt/,  by  the  orders  of 
the  Danish  government,  so  suddenly  after  her  liberation,  as  not 
to  allow  time  for  a  further  correspondence  between  the  master 
and  Messrs.  Parish  Sf  Co.,  and  he  was  prevented  from  commu- 
nicating with  them,  by  the  situation  of  affairs,  and  not  by  his 
own  act  or  conduct;  he  would,  under  such  circumstances,  to  be 
found  by  the  jury,  and  by  force  of  his  letter  of  instructions,  have 


OF  MARYLAND.  173 


Wirgman'a  Adm'rs  us.  Mactier.— 1829. 


become  the  special  agent  of  the  appellee,  and  by  proceeding  to 
Hull,  in  England,  and  there  accepting  that  part  of  the  cargo 
which  belonged  to  the  appellee  in  fulfilment  of  the  contract,  have 
entitled  the  owners  to  freight,  and  the  court  should  have  so  in- 
structed the  jury,  if  there  had  been  any  evidence  in  the  cause  to 
justify  such  a  direction.  But  we  can  discover  no  such  evidence. 
If  it  should  be  conceded  that,  that  part  of  the  deposition  of 
James  Dooley  relied  upon  for  that  purpose,  was  legal  evidence, 
which  is  not  very  clear,  being  only  evidence  of  what  he  heard 
a  pilot  say,  there  is  nothing  in  it  to  sustain  such  a  direction. 
The  most  that  can  be  made  of  Dooleifs  testimony  is,  that 
about  the  10th  of  December,  1810,  the  master  went  on  board 
the  ship  accompanied  by  a  pilot,  who  directed  her  to  be  got 
under  way,  and  said  he  had  received  orders  from  a  custom 
house  officer  to  take  her  to  sea  that  night.  Now  there  is  nothing 
in  this,  tending  in  the  slightest  manner  to  prove,  that  the  ship 
was  expelled  from  the  port  of  Norway  by  the  orders  of  the 
Danish  government  so  suddenly  after  her  liberation,  as  not  to 
allow  time  for  a  further  correspondence  between  the  master 
and  Messrs.  Parish  fy  Co.,  and  that  he  was  prevented  from 
communicating  with  them  by  the  situation  of  affairs,  and  not  by 
his  own  act  or  conduct.  The  ship  was  liberated,  as  is  shewn 
by  the  letter  of  the  master  himself,  of  the  8th  of  November, 
1810,  on  the  5th  of  that  month,  and  according  to  Dooleifs  de- 
position, was  taken  to  sea  by  the  pilot  about  the  10th  of  Decem- 
ber, thirty-five  days  after  her  liberation;  during  the  whole  of 
which  time,  she  was  permitted  by  the  state  of  affairs,  to  remain 
at  Flekkefiord.  It  is  also  shewn  /by  the  letters  of  the  master, 
that  in  answer  to  letters  addressed  by  him  to  Messrs.  Parish  & 
Co.,  after  the  capture  and  during  the  detention  of  the  ship,  he 
received  two  letters  from  them,  in  eleven  days  after  their  re- 
spective dates.  Dooley^s  testimony  then,  so  far  from  tending  to 
prove,  or  affording  the  slightest  ground  for  the  inference,  that 
the  ship  was  expelled  from  the  ports  of  Norway  so  suddenly,, 
as  not  to  allow  time  for  a  further  correspondence  between  the 
master  and  Messrs.  Parish  ^  Co.  if  it  proves  any  thing,  clearly 
establishes  the  contrary  hypothesis^  by  shewing  that  she  was 


17 1         CASES  IN  THE  COURT  OF  APPEALS 

Wirgman's  Adm'rs  rs.  Mactier. — 1829. 

permitted  to  remain  at  Flckkcford  thirty-five  days  after  her 
liberation;  quite  long  enough  for  a  communication  \vilh  .Messrs. 
Parish  fy  Co.,  as  it  only  required  eleven  days  for  a  letter  to 
pass  between  them — during  which  time,  the  master,  if  he  had 
been  so  disposed,  might,  as  it  was  his  duty  to  do,  have  open- 
ed a  correspondence  with  them,  relative  to  the  disposition  or 
further  destination  of  the  appellee's  goods.     And  so  far  from 
there  being  any  evidence  to  show,  that  his  not  seeking  the  ad- 
vice of  Messrs.  Parish  fy  Co.,  was  owing  to  the  situation  of 
affairs,  which  prevented  his   communicating  with   them,  the 
whole  of  the  evidence  lies  the  other  way.     His  telling  them  in 
his  second  letter,  that  their  advice  would  be  of  no  service  to 
him,  and  never  afterwards  seeking  it;  and  his  following  up  that 
with  his  letters  of  the  8th  and  10th  of  November,  in  the  first 
of  which  he  advises  them  of  the  liberation  of  the  ship,  and 
his  determination  to  land  the  cargo  at  Flekkcfiord,  and  in  the 
other,  of  his  intention  to  commence  unloading  on  the  Wednes- 
day following;  and  the  evidence  of  Dooley,  that  in  the  month 
of  October  or  November,  before  the  vessel  was  released,  he 
heard  him  and   Thomman,  the  supercargo  employed   by  the 
other  shippers,  say,  that  they  had  united  in  the  determination  to 
proceed  to  Hull  in  the  event  of  the  liberation  of  the  ship,  with 
the  additional  circumstance,  that  he  made  no  effort  to  obtain 
their  advice,  during  the  thirty-five  days  that  the  ship  was  per- 
mitted to  remain  at  Fkkkefiord  after  her  liberation,  tend  strong- 
ly to  prove  his  fixed  determination,  not  to  submit  himself  to 
their  directions,  but  to  act  upon  his  own  judgment  and  respon- 
sibility.    The   hypothetical   direction,   therefore,   which   was 
asked  for  by  the  prayer  set  out  in  the  fourth  bill  of  exceptions, 
was  properly  refused,  being  an  abstract  proposition,  not  arising 
out  of  the  evidence  in  the  cause. 

Whether  the  ship  owners  were,  under  the  circumstances  of 
the  case,  entitled  in  equity  and  good  conscience,  to  retain  the 
money  received  on  account  of  freight,  was  clearly  a  question 
not  to  be  left  to  the  jury,  but  proper  only  to  be  decided  by  the 
court. 


OF  MARYLAND.  175 


Bowie,  use  of  Ladd,  et  al.  vs.  Duvall — 1829. 


We  concur,  in  opinion,  with  the  court  below,  on  the  second, 
third  and  fourth  bills  of  exception,  but  dissent  from  the  opinion 
expressed  in  the  first  exception,  and  REVERSE  THE  JUDGMENT 

AND    AWARD    A    PROCENDO. 


BOWIE,  use  of  LADD,  et  al.  vs.  DUVALL. — December,  1829. 

The  statute  3d  and  4//i  .flnne,  Ch.  9,  declares  that  promissory  notes  shall  be 
assignable  or  endorsable  over  in  the  same  manner  as  inland  bills  of 
exchange  are,  or  may  be,  according  to  the  custom  of  merchants;  and 
power  is  by  the  same  statute  given  to  endorsees,  to  maintain  actions 
against  the  drawers,  or  prior  endorsers  of  such  notes,  in  the  same  manner 
as  in  cases  of  inland  bills  of  exchange. 

By  this  statute,  bills  of  exchange  and  promissory  notes  are  placed  on  the 
same  footing,  and  the  law  applicable  to  bills,  is  in  general  applicable  to 
promissory  notes. 

When  a  bill  of  exchange  is  endorsed  in  full,  all  the  legal  interest  is  trans- 
ferred to  the  endorsee,  and  having  the  legal  interest,  he  alone  is  qualified 
to  maintain  an  action  on  such  bill.  He  cannot  use  the  name  of  the  payee, 
because  the  payee  having  transferred  his  interest,  can  have  no  compe- 
tency to  maintain  an  action. 

So  where  it  appeared  that  the  note  of  the  defendant,  payable  to  B  or  order, 
had  been  endorsed  as  follows,  "I  assign  the  within  for  value  received,  to 
L;"  signed  B,  but  which  endorsement  was  erased  just  before  the  jury  was 
sworn;  it  was  held  that  an  action  in  the  name  of  B,  originally  instituted 
for  the  use  of  L,  could  not  be  maintained,  upon  the  note,  as  there  was  no 
evidence  from  which  the  jury  could  infer  that  the  payee  and  plaintiff  was 
the  holder  of  the  note;  neither  could  an  action  be  maintained  on  the 
money  counts,  although  there  was  p/oof  of  an  express  promise  to  pay 
the  sum  demanded  in  such  suit,  as  that  must  be  considered  as  enuring  to 
the  benefit  of  him  who  had  a  right  to  the  note. 

If  a  note  duly  endorsed  in  full,  should,  in  the  regular  course  of  commercial 
dealing,  come  back  to  the  hands  of  a  prior  endorser,  or  of  the  payee,  it 
would  be  competent  for  such  person  as  the  holder,  to  strike  out  the 
endorsement,  and  sue  in  his  own  name. 

English  decisions  made  since  the  revolution,  have  no  authoritative  force 
here. 

In  an  action  against  the  maker  of  a  note,  payable  at  the  house  of  the  payee 
and  plaintiff,  on  a  certain  number  of  days  after  date,  no  demand  of  pay- 
ment is  necessary  to  be  averred  or  proved. 


176          CASKS  IX  THE  COURT  OF  APPEALS 

Howi«>,  us,-  ,,f  |.:i,lil,  rt  at.  m.  Duvall.— 1829. 

APPEAL  from  Prince  George's  County  Court.  This  was  an 
net  ion  of  assumpsit,  brought  by  the  payee  against  the  maker  of 
a  promissory  note.  The  declaration  contained  a  count  on  a 
note  drawn  on  the  4th  of  September,  1821,  by  the  appellee, 
(the  defendant  in  the  court  below)  for  $1387  65,  payable  sixty 
days  after  date,  to  the  appellant  (the  plaintiff  in  that  court)  or 
order;  and  also  the  common  money  counts.  The  general  issue 
was  pleaded. 

1.  At  the  trial,  the  plaintiff  offered  in  evidence  the  following 
promissory  note: 

"$1387  65  Prince  George's  County,  Sept.  4, 1821. 

Sixty  days  after  date,  I  promise  to  pay  Washington  Bowie,  or 
order,  thirteen  hundred  and  eighty-seven  dollars  and  sixty-five 
cents,  for  value  received,  and  payable  at  the  house  of  W. 
Bowie.  John  Duvall." 

The  signature  of  John  Duvall  thereto,  being  admitted  to  be  in 
the  hand  writing  of  the  defendant.  The  defendant  then  offered  in 
evidence,  that  the  said  note  had  been  specially  endorsed  by  the 
plaintiff  as  follows:  "I  assign  the  within  for  value  received,  to 
John  //.  Ladd  $•  Co.  Washington  Bowie." 

Alexandria,  22d  October,  1822. 

The  signature  of  the  plaintiff  being  admitted,  the  whole  of 
the  said  endorsement  was  erased  just  before  the  jury  was  em- 
panneled.  The  defendant  further  proved  by  the  docket  entries, 
that  the  suit  was  originally  instituted  for  the  use  of  John  H. 
Ladd  $  Co.  The  defendant  then  prayed  the  court  to  instruct 
the  jury  that  the  plaintiff  was  not  entitled  to  recover.  Of 
which  opinion  the  court  [Stephen,  Ch.  J.  and  Key  and  Plater, 
A.  J.]  were,  and  so  instructed  the  jury,  there  being  no  proof 
offered  that  Washington  Bowie,  the  legal  plaintiff,  ever  had 
actual  possession  of  the  note,  after  the  special  endorsement, 
except  that  the  note  was  filed  in  the  cause.  The  plaintiff 
excepted. 

2.  The  defendant  then,  on  the   above  evidence,  prayed  the 
court  to  instruct  the  jury,  that  as  the  plaintiff  had  not  averred 
in  his  declaration,  that  the  amount  of  the  said  note  was  demanded 
by  him  at  the  house  of  Washiyigton  Bowie,  agreeably  to  the 


OF  MARYLAND.  /     177 


Bowie,  use  of  Ladd,  et  al.  vs.  Duvall — 1829. 


terms  of  said  note,  and  no  proof  of  a  demand  was  given  to  the 
jury;  the  plaintiff  was  not  entitled  to  a  verdict.  And  the  court 
being  of  that  opinion,  so  instructed  the  jury.  The  plaintiff 
excepted. 

3.  In  addition  to  the  above  evidence,  the  plaintiff  proved  by 
a  competent  witness,  that  after  the  institution  of  this  suit,  the 
defendant,  in  conversing  with  the  witness  relative  to  this  suit, 
stated  that  he  was  making  exertions  to  pay  off  the  suit  against 
him,  and  that  he  could  easily  do  so  if  he  was  not  forced  to  sell 
his  property,  and  that  he  only  wanted  time.  That  he  never,  in 
any  numerous  conversations  to  the  same  effect,  intimated  to  the 
witness  that  he  had  paid  the  note,  or  had  any  defence  whatever, 
except  once,  when  he  then  stated  (after  the  witness  had  refused 
to  grant  him  any  indulgence)  that  he  intended  to  dispute  the 
claim,  and  that  his  counsel  had  been  so  instructed.  The 
witness  also  stated,  that  the  defendant,  in  April,  1825,  and 
during  the  term  of  Prince  George's  County  Court,  inquired  of 
the  witness  the  number  of  the  case  on  the  docket,  and  asked 
the  witness,  if  he  believed  the  court  would  continue  its  session 
until  the  case  should  be  reached,  and  then  said  that  if  a  judg- 
ment should  be  entered,  he  hoped  the  witness  would  give  him  a 
stay  of  execution.  At  this  time  the  defendant  did  not  say  that 
he  had  any  defence  against  the  claim.  The  witness  further 
stated  that  his  impression  is,  that  the  defendant,  at  the  time  he 
asked  for  a  stay  of  execution,  was  willing  to  have  confessed  a 
judgment.  The  plaintiff  then  prayed  the  court  to  instruct  the 
jury,  that  upon  this  evidence,  if /believed  by  the  jury,  the 
plaintiff  is  entitled  to  recover  the  amount  of  said  note.  But  the 
court  refused  to  give  such  instruction;  and  were  of  opinion, 
and  so  directed  the  jury,  that  so  long  as  the  endorsement 
aforesaid  remained  on  the  note,  a  suit  could  «not  be  brought 
on  the  said  note  in  the  name  of  Washington  Bou-ic.  The 
plaintiff  then  prayed  the  court  to  instruct  the  jury,  that  if 
the  note  was  endorsed  and  delivered  to  John  II.  Ladd  8f  Co. 
by  Washington  Howie,  that  it  was  competent  for  John  II.  Ladd 
<$•  Co.  the  endorsees,  to  have  this  suit  brought  in  the  name  of 
Washington  Bowie,  for  their  use,  and  to  authorize  the  striking 
VOL.  I.— 23. 


178         CASES  IN  THE  COURT  OF  APPEALS 

Bowie,  use  of  Ladd,  et  al.  rs.  Duvall.— 1829. 

out  the  endorsement  to  them  for  that  purpose.  And  that  in 
this  case,  if  the  suit  was  so  brought  by  John  IL  Ladd  Sf  Co. 
then  the  endorsement  being  struck  out  after  the  suit  was 
brought,  the  plaintiff  is  entitled  to  recover.  Which  instruction 
the  court  refused  to  give.  The  plaintitF  then  prayed  the  court 
to  instruct  the  jury,  that  if  the  jury  believe  from  the  evidence, 
that  after  the  suit  was  brought,  the  defendant  acknowledged 
the  justice  of  the  claim,  and  promised  to  pay  it,  or  confess 
judgment,  then  such  acknowledgment  is  evidence  under  the 
mouey  counts;  and  also  of  the  plaintiff's  right  to  recover  as  the 
holder  of  the  note.  Which  instruction  was  also  refused  by  the 
court.  The  plaintiff  then  prayed  the  court  to  instruct  the  jury, 
that  if  they  believe  from  the  evidence,  that  after  this  suit  was 
brought,  the  defendant  acknowledged  the  justice  of  the  debt  for 
which  lie  was  sued,  and  promised  to  pay  or  confess  judgment, 
then  such  acknowledgment  is  evidence  under  the  money  counts. 
Which  instruction  the  court  also  refused  to  give.  The  plaintiff 
cxcepted  to  all  the  refusals  and  opinions  of  the  court.  Verdict 
and'  judgment  for  the  defendant;  and  the  plaintiff  appealed 
to  this  court. 

The  cause  was  argued  at  June  term,  1 828,  before  BUCHAN- 
AN, Ch.  J.  and  EARLE,  ARCHER  and  DORSEY,  J. 

F.  S.  Key  and  J.  Forrest  for  the  appellant.  On  the  first  bill 
of  exceptions,  they  cited  2  Phill  Evid.  29,  (note  a.)  11,  (note  e.) 
Dugan  vs.  United  States,  3  IVheat.  173.  Chitty  on  Bills,  150 
(note  b.)  Biddle  vs.  Gray,  et  ux.  2  Harr.  <§<•  Johns.  328. 

On  the  second  bill  of  exceptions,  they  cited  Rowe  vs.  Young, 
6  Serg.  Sf  Loicb.  53.  Rhodes  vs.  Gent.  7  Serg.  fy  Lowb.  84. 
Sank  of  the  United  States  vs.  Smith,  11  IVlieat.  172.  Wolcott 
ts.  Santvoord,  17  Johns.  Rep.  248.  1  ChUty's  Plead.  263,264. 
3  Chitty^  Plead.  4,  (note  a.) 

J.  Johnson  and  Stonestrect  for  the  appellee.  On  the  first  bill 
of  exceptions,  they  cited-  Dugan  vs.  United  States,  3  W heat. 
172.  Chitty  on  Bills,  150,  (note  6.)  Clark  vs.  Pigot,  1  Salk. 
126.  Theed  vs.  Lovell,  2  Slra.  1103.  Kiersted  vs.  Rogers  4r 
Garland,  6  Harr.  fy  Johns,  282. 


OF  MARYLAND.  179 


Bowie,  use  of  Ladd,  et  al.  vs.  Duvall. — 1829. 


On  the  second  bill  of  exceptions,  they  cited  Wolcott  vs.  Sant- 
voord,  17  Johns.  Rep.  254.  Bowes  vs.  Howe,  1  Serg.  Sf  Lowb, 
8.  Trecothick  vs.  Edwin,  2  Serg.  fy  Lowb. .  470.  Gammon  vs. 
Schmoll,  1  Serg.  fy  Lowb.  128.  Rowe  vs.  Young,  6  Serg.  fy 
Loicb.  105.  Rhodes  vs.  Gent.  7  Serg.  Sf  Lowb.  84. 

ARCHER,  J.  delivered  the  opinion  of  the  court. 

The  statute  3d  <$•  4th  Jlnne,  ch.  9,  declares  that  promissory 
notes  shall  be  assignable  or  endorseable  over  in  the  same  man- 
ner as  inland  bills  of  exchange  are,  or  may  be,  according  to 
the  custom  of  merchants ;  and  power  is  by  the  same  statute 
given  to  endorsees  to  maintain  actions  against  the  drawers,  or 
prior  endorsers  of  such  notes,  in  the  same  manner  as  in  cases  of 
inland  bills  of  exchange. 

By  this  statute  bills  of  exchange  and  promissory  notes  are 
placed  on  the  same  footing,  and  the  law  applicable  to  bills  is  in 
general  applicable  to  promissory  notes. — Chit,  on  Sills,  335. 

When  a  bill  of  exchange  is  endorsed  in  full,  all  the  legal  inte- 
rest is  transferred  to  the  endorsee,  and  having  the  legal  interest 
he  alone  is  qualified  to  maintain  a  suit.  He  cannot  use  the 
name  of  the  payee,  because  the  payee  having  transferred  his 
interest,  can  have  no  competency  to  maintain  an  action. 

It  is  true,  that  if  a  note  duly  endorsed  in  full,  should  in  the 
regular  course  of  commercial  dealing,  come  back  to  the  hands 
of  a  prior  endorser,  or  of  the  payee,  it  would  be  competent,  for 
such  person  as  the  holder  to  strike  out  the  endorsement,  and  sue 
in  his  own  name.  These  positions/ are  fully  maintained  by  the 
Supreme  Court  of  the  United  Stares,  in  the  case  of  Dugan  vs. 
Tlie  United  States,  3  Wheat.  183,  where  it  is  said  "that  if  any 
person  who  endorses  a  bill  of  exchange  to  another,  whether  for 
value  or  for  purposes  of  collection,  shall  come  to  the  possession 
thereof  again,  he  shall  be  regarded  as  the*/;0nct  fide  holder  and 
proprietor  of  such  bill,  and  shall  be  entitled  to  recover  not- 
withstanding there  may  be  on  ii,  one  or  more  endorsements  in 
full, subsequent  to  the  one  to  him,  without  producing  any  i-prcml. 
or  endorsement  back  from  cither  of  such  endorsees,  whose 
names  he  may  strike  from  the  bill,  or  not,  as  he  pleases." 


180         CASES  IN  THE  COURT  OF  APPEALS 

Bowie,  use  of  Ladd,  ft  al.  rs.  Duvall — ' 

The  correctness  then  of  the  opinion  of  the  court  below,  as 
expressed  in  the  first  bill  of  exceptions,  must  depend  upon  the 
,  \\li-ther  there  was  any  evidence  from  which  the  jury  could 
infer,  ihat  /»'.  Boicic  the  payee  and  lethal  plaintiff'  in  this  case, 
\\.is  at  the  time  of  the  institution  of  this  suit,  the  holder  of  the 
note  upon  which  this  action  was  brought.  The  suit  is  in  the  name 
of  the  payee,  and  is  marked  to  the  use  of  Ladd  fy  Co.,  to  whom 

the  endorsement  had  been  made  in  full,  before  the  commencement 
i 

of  the  suit  Either  Borne  or  Ladd  fy  Co.  filed  the  note  and  di- 
rected the  use.  If  Bowie  filed  the  note  with  its  special  endorse- 
ment, and  directed  the  use,  it  was  evidence  not  to  be  disregarded, 
that  Bowie  meant  the  assignment  should  be  perfected.  He  had 
in  fact  by  so  doing  delivered  it  to  La dd  $  Co.;  and  Ladd  $  Co. 
must  be  considered  in  the  absence  of  evidence  to  the  con- 
trary, as  assenting  to  the  transfer,  it  being  for  their  benefit. 
Nor  could^otcze,  after  the  endorsement  and  the  direction  to 
enter  Jt  for  the  use  of  Ladd  4'  Co.,  although  the  legal  plaintiff, 
strike  out  the  use,  or  interfere  with  the  endorsement  without 
the  consent  of  Ladd  fy  Co.  It  is  therefore  manifest  even  in 
this  view  of  the  case,  that  Bowie  would  have  parted  with  his 
right,  was  no  longer  a  holder  of  the  note,  and  could  not  main- 
tain a  suit.  If  on  the  contrary,  Laddfy  Co.  filed  the  note  with 
the  assignment,  then  the  transfer  was  clearly  complete,  and  the 
suit  should  have  been  brought  in  their  names,  as  they  were 
legally  entitled  to  the  note,  and  were  the  holders  thereof.  There 
being  then  no  evidence  from  which  the  jury  could  infer  that  the 
payee  and  plaintiff  was  the  holder  of  the  note,  he  was  not 
entitled  to  recover  upon  the  evidence  stated  in  the  first  bill  of 
exceptions. 

The  views  which  have  been  submitted  of  the  law  arising  out 
of  the  first  bill  of  exceptions,  disposes  of  the  two  first  prayers 
in  the  third  exception. 

We  also  concur  with  the  court  below  in  the  opinions  ex- 
pressed by  them  on  the  third  and  fourth  prayers  in  the  third  ex- 
ception. If  the  right  was  in  Ladd  #  Co.  there  could  be  no  re- 
covery by  the  plaintiff  on  the  money  counts ;  the  promise  to 
pay  must  be  considered  as  enuring  to  the  benefit  of  him  who  had 


OF  MARYLAND.  181 


Bowie,  use  of  Ladd,  etal.  vs.  Duvall. — 18'<J9. 


a  right  to  the  note,  and  if  the  right  to  the  note  was  in  Ladd  fy  Co., 
any  promise  to  Bowie  was  without  consideration  and  void.  Nor 
could  the  promise  to  pay  or  confess  judgment,  if  the  jury  had 
believed  in  the  existence  of  the  promise,  have  enabled  Bowie. 
to  have  recovered  as  holder,  because  the  right  by  the  endorse- 
ment was  transferred  to  Ladd  $  Co.  who  are  to  be  considered 
as  the  holders,  in  the  absence  of  testimony,  showing  that  the 
note  had  got  back  to  the  hands  of  Bowie. 

In  the  second  bill  of  exceptions,  the  court  decide  that,  no 
recovery  could  be  had  by  the  plaintiff,  because  he  had^  not 
averred  in  his  declaration,  that  the  amount  of  the  said  note  was 
demanded  by  him  at  the  house  of  Washington  Bowie,  and 
because  no  proof  was  given  to  the  jury  of  a  demand.  The 
general  doctrine  that  where  a  note  is  payable  on  demand,  at  a 
particular  place,  the  averment  of  a  demand  and  proof  of  notice 
is  necessary,  seems  to  be  well  established  law  in  England,  as 
will  be  seen  by  consulting  the  opinions  of  the  twelve  judges, 
delivered  in  the  case  of  Rowe  and  Young,  2  Broderip  4<- 
Bingham,  even  in  the  case  of  a  suit  against  the  maker  of  a  note. 
So  too  it  was  settled  by  that  decision,  that  if  an  acceptance 
was  made  payable  at  a  particular  place,  the  averment  of  a 
demand  and  proof  thereof  was  considered  indispensable  to  a 
recovery,  because  in  each  case  the  place  of  payment  according 
to  the_idea  of  the  judges,  is  made  part  and  parcel  of  the  con- 
tract. Such,  however,  were  the  inconveniences  of  the  rule, 
that  Parliament,  by  the  statute  of  2  Geo.  IF.  ch.  78,  declared 
that  an  acceptance  at  a  particular/place,  should  have  the  effect 
of  a  general  acceptance,  unless  Ipe  acceptance  was  made  pay- 
able at  a  particular  place,  and  not  elsewhere.  These  English 
decisions,  which  have  in  part  been  abrogated  by  the  Legislature, 
as  departures  from  commercial  usage  and  policy,  and,  where, 
not  interfered  with  by  them,  have  been  considered  by  some  of 
her  most  eminent  jurists,  as  departures  from  the  law,  [vide  >Mr. 
Justice  Bayley^s  and  Mr.  Justice  Jlbbofs  commentary  on  San- 
derson vs.  Boices,  2  Brod.  <Sr  Bing.  180,]  have  no  authoritative 
force  here,  because  the  cases  in  which  these  doctrines  have 
been  settled,  have  been  adjudicated  since  our  revolution,  and 


l-»          CASES  IN  THE  COURT  OF  APPEALS 

Bowie,  use  of  I .ailil,  <t  al.rs.  Duvall. — 1829. 

are  against  all  the  analogies  of  the  law,  as  was  clearly  demon- 
strutrtl  by  fin  y  Icy  Justice,  in  his  argument  in  Roice  ami  Jt'J'cryt, 
anil  by  C/i.  J. Spencer,  in  Wolcott  vs.  \'au  Saiiivoord,ll  Johns. 
JoO. 

The  Supreme  Court  of  the  United  States,  in  the  case  of  the 
I'nitcd  States  Hank  vs.  Smith,  11  Wheat.  175,  after  adverting 
to  the  British  decisions  on  this  question  say,  that  a  contrary 
opinion  has  been  entertained  in  the  courts  of  this  counliy,  that 
a  demand  on  the  maker  of  a  note,  or  the  acceptor  of  a  bill, 
payable  at  a  specific  place,  need  not  be  averred  in  the  decla- 
ration, or  proved  at  the  trial.  That  it  is  not  a  condition  prece- 
dent to  the  right  of  recovery,  and  they  intimate  their  opinion  to 
be  in  accordance  with  such  determinations.  In  New  York,  the 
law  has  been  considered  as  settled  in  the  same  way,  from  the 
case  of  Foden  vs.  Sharp,  4  Johns.  Rep.  1 84,  decided  in  the 
year  1809,  where  the  court  say  "the  holder  of  a  bill  of  ex- 
change need  not  show  a  demand  of  payment  of  the  acceptor, 
any  more  than  of  the  maker  of  a  note;"  and  in  17  Johns.  Rep.  248, 
the  court  say,  in  commenting  on  this  case,  that  such  was  the 
doctrine  of  the  English  courts  at  that  time,  and  they  there  de- 
cide that  a  demand  at  the  place  where  accepted,  is  not  a  con- 
dition precedent  to  the  right  to  recover,  and  that  of  course  it 
need  not  be  averred  in  the  declaration. 

In  deciding  in  this  case,  that  no  demand  was  necessary  to  be 
made,  we  shall  contradict  no  decided  case  in  this  country, 
which  lias  fallen  under  our  observation.  The  note  it  must  be 
recollected,  is  payabk  at  the  house  of  the  payee  and  plaintiff, 
and  is  not  payable  on  demand  there,  but  sixty  days  after  date. 
In  1 1  Wlieat.  171,  United  States  Sank  vs.  Smith,  it  is  decided, 
that  if  the  bank  at  which  a  bill  or  note  is  payable,  be  the  hold- 
er of  the  bill  or  note,  no  demand  will  be  necessary,  but  an  ex- 
amination into  the  state  of  the  accounts  of  the  maker  in  bank, 
to  see  whether  he  has  deposited  funds,  is  all  that  is  necessary 
to  be  done,  to  enable  the  party  to  recover.  The  same  decision 
has  been  made  in  12  Mass.  404,  with  the  exception  that  no  ex- 
amination of  the  books  was  required.  In  New  York,  Caldwell 
v$.  Cassedy,  8  Cowan,  271,  it  was  decided,  that  the  place  does 


OF  MARYLAND.  183 


Bowie,  use  of  Ladd,  et  al.  vs.  Duvall. — 1829. 


not  enter  into  the  essence  of  the  contract,  unless  the  promise  is 
to  pay  on  demand  at  that  place,  and  that  consequently  where  the 
note  is  made  payable  at  a  particular  place  merely,  no  demand  is 
necessary  to  be  averred.  This  decision  meets  the  present  case. 
But  we  would  not  wish  to  be  understood  as  deciding  this  case, 
upon  so  subtle  a  distinction,  but  upon  the  broad  ground,  that 
when  the  suit  is  against  the  maker  of  a  p'romissory  note,  no  de- 
mand is  necessary  to  be  averred,  upon  the  principle,  that  the 
money  to  be  paid  is  a  debt  from  the  defendant,  that  it  is  due 
generally  and  universally,  that  it  will  continue  due,  though  there 
be  a  neglect  on  the  part  of  the  creditor,  to  attend  at  the  time, 
and  place,  to  receive  or  to  demand,  that  it  is  matter  of  defence 
on  the  part  of  the  defendant,  to  shew  that  he  was  in  attendance 
to  pay,  but  the  plaintiff  was  not  in  readiness  to  receive,  which 
defence  generally,  will  be  in  bar  of  damages  only,  and  not  in 
bar  of  the  debt. 

It  is  stated  in  Sanderson  rs.  Bowes  (14  East.  Rep.  500)  that 
the  place  of  payment  is  inserted  in  promissory  notes  as  a  matter 
of  convenience  to  the  makers,  fork  would  be  very  inconvenient 
if  they  should  be  compelled  to  answer  them  every  where, 
when  it  is  notorious  that  they  have  made  provision  to  answer 
them  at  a  particular  place.  If  such  be  the  practice  in  England, 
where  the  makers  of  notes  have  generally  their  bankers,  with 
whom  funds  are  set  apart  for  the  special  payment  of  their  notes, 
the  construction  which  prevails  there,  upon  this  clause  of  such 
an  instrument,  may  have  grown  out  of  the  commercial  usages 
of  the  country.  But  our  usages/here  would  seem  to  lead  to  a 
different  construction,  for  it  is  a  matter  of  notoriety,  that  parties 
to  this  commercial  instrument  generally  collect  them  in  our 
cities,  through  the  medium  of  the  banking  institutions;  and  they 
are  most  frequently  made  payable  there,  or  at  a  particular 
place,  not  for  the  convenience  of  the  drawer,  but  for  the  benefit 
of  the  holder,  that  his  collection  may  be  facilitated.  And  this 
case  furnishes  an  illustration  of  the  fact,  for  it  is  perfectly 
obvious  that  the  home  of  the  payee  was  the  place  of  payment, 
here  to  suit  the  convenience  of  the  payee,  not  the  maker. 


i-  1        c\si:s  IN  TIII:  COURT  OF  APPEALS 

.  C:mi:m.  —  I 


\\Y  concur  \\ith  tlie  court  below,  in  every  direction 
by   them  to  the  jury,  but.  disagree  \\ith  tbem  iu  the  opinion 
in  the  second  bill  of  exceptions. 

JUDGMENT  AFFIRMED. 


WILLIAMSON  vs.  CARNAN. 

AFTER  an  injunction  had  been  granted,  prohibiting  the  defendant  from  ob- 
structing a  public  road,  the  Commissioners  of  Baltimore  County  authorised 
the  same  road  to  be  shut  up.  The  defendant,  who  was  the  owner  of  the 
land  over  which  the  road  passed,  without  moving,  or  waiting  for  a  dissolu- 
tion of  the  injunction,  shut  it  up.  The  Chancellor  excused  this  violation 
of  the  injunction,  upon  the  ground  that  the  defendant  had  misapprehended 
his  rights;  but  ordered  him  to  place  the  road  in  its  former  condition;  this 
not  being  done,  the  defendant  was  brought  before  the  Chancellor  by 
attachment.  The  injunction  was  then  ordered  to  be  continued  until  final 
hearing,  or  further  order;  and  the  defendant  to  remove  the  obstructions, 
and  for  his  contempt  in  not  removing  them  since  the  previous  order,  was 
fined.  From  these  proceedings  the  defendant  appealed.  Upon  a  motion 
to  dismiss  the  appeal,  it  was  held,  that  the  order  of  the  commissioners 
directing,  and  authorising,  the  old  road  to  be  shut  up,  placed  the  premises 
over  which  it  formerly  run,  under  the  control  of  the  defendant,  and  gave 
him  the  same  right  of  user  of  the  land  of  that  road,  that  he  had  of  the 
rest  of  his  estate;  and  that  the  subsequent  orders  of  the  Court  of  Chan- 
cery, so  affected  his  rights  and  interests  therein,  as  to  form  a  fit  subject  of 
appeal. 

Where  the  Chancellor  entertains  a  doubt  as  to  the  propriety  of  granting  an 
injunction  at  all,  or  where,  when  granted,  it  operates  in  restraint  of  pub- 
lic commissioners  for  the  opening  a  road,  street,  or  the  like;  or  it  alto- 
gether stops,  retards,  or  embarrasses  the  operation  of  a  large  manufactur- 
ing establishment,  or  restrains  a  public  ferry,  in  these  and  some  other 
cases  of  a  very  peculiar  nature,  it  has  been  the  practice  in  the  first  in- 
stance, or  on  application,  to  appoint  a  very  early  day  for  the  hearing  of  the 
motion  of  a  dissolution  of  the  injunction,  and  that  too,  either  with  or 
without  answer.  PER  BLAND,  CHAK'R. 

But  where  upon  a  defendant's  own  showing,  the  injunction  operates  in  re- 
straint of  a  right,  which  he  has  but  recently  acquired,  or  has  not  long  de- 
cidedly and  exclusively  enjoyed,  and  there  is  nothing  peculiar  in  the  case, 
so  as  to  require  a  departure  from  the  general  rule,  it  must,  as  in  other 
cases  where  individuals  only  are  restrained,  take  the  course  of  the  court. 

IB. 


OF  MARYLAND.  185 


Williamson  vs.  Carnan. — 1829. 


Whether  an  inferior  tribunal  with  jurisdiction  over  a  given  subject,  has 
proceeded  to  exercise  it  upon  such  subject  correctly,  or  erroneously,  or 
has  in  any  respect  neglected,  or  disregarded,  its  prescribed  modes  and 
forms,  is  not  for  the  Chancellor  to  determine,  where  he  has  no  revising 
or  superintending  authority  over  it.  •  IB. 

Chancery  will  restrain  a  party  from  doing  an  act  injurious  to  an  individual, 
or  which  may  be  prejudicial  as  a  public  nuisance,  pending  any  judicial 
proceedings  before  those  tribunals,  by  which  the  authority  to  do  the  act, 
or  its  lawfulness  is  to  be  determined.  IB. 

APPEALS  from  sundry  orders  of  the  Court  of  Chancery. 
The  bill  of  complaint  in  this  case,  was  filed  on  the  12th  of 
May,  1826,  in  Baltimore  County  Court,  sitting  as  a  court  of 
equity,  by  the  complainants,  (now  appellees,)  against  the  de- 
fendant, (the  appellant,)  and  afterwards,  under  the  act  of 
1824,  ch.  196,  at  the  instance  of  the  defendant,  was  trans- 
mitted to  the  Court  of  Chancery.  The  bill  states,  that  a 
certain  road  or  highway  in  Baltimore  county,  usually  known  ty 
the  name  of  the  Garrison  Forest  Road,  has  been  a  public  road 
of  Baltimore  county,  for  upwards  of  fifty  years,  and  for  many 
years  past  has  been  duly  and  legally  recognized  as  such,  on  the 
records  of  the  Levy  Court  of  said  county,  and  has  for  a  long 
time  been  used  and  travelled  by  the  complainants,  (residents 
and  landholders  in  the  said  county,)  and  other  inhabitants  of 
the  said  county,  as  their  nearest  and  most  convenient  road  and 
way,  from  their  respective  farms  and  places  of  residence  in  the 
said  county,  to  the  city  of  Baltimore,  the  principal  and  most 
important  market  in  the  said  county.  That  on  the  18th  of 
April,  1825,  John  M.  Wyse,  (one/of  the  complainants,)  was 
duly  appointed  supervisor  of  the  spid  public  road,  by  the  Levy 
Court  of  the  said  county,  as  by  the  warrant  exhibited.  That 
the  said  Wyse  duly  accepted  the  said  appointment,  and  took 
upon  himself  the  performance  of  the  duties  thereof,  and  that 
he  hath  never  resigned  his  said  appointment,  nor  hath  any  other 
person  been  appointed  supervisor  of  the  said  road,  or  any  part  of 
it,  of  which  he  was  so  appointed;  and  as  such  supervisor,  it  was, 
and  is  his  duty  to  clear,  amend,  and  keep  in  good  repair,  the 
said  public  road,  and  not  to  permit  or  suffer  any  fallen  trees,  or 
VOL.  1—24. 


IN?         CASES  IN  THE  COURT  OF  APPEALS 

Williamson  r».  Carnan. — 1829. 

other  obstructions,  within  his  power,  to  remain  in  or  across  the 
said  road,  whereby  any  wagon,  £c.  may  be  obstructed  for  the 
space  of  two  days  together.     That  the  justices  of  the  Levy 
Court  of  the  said  county,  without  any  such  application,  pro- 
ceedings or  proof  being  made  to  and  before  the  said  Levy 
Court,  as  is  and  are  required  by  law,  and  by  the  acts  of  Assem- 
bly in  such  case  made  and  provided,  and  without  any  lawful 
authority  or  good  right  so  to  do,  on  the  10th  of  April,  1826, 
made  and  passed  an  order  of  the  said  Levy  Court,  to  close  and 
shut  up  a  part  of  the  aforesaid  public  road,  to  wit,  all  that  part 
between  a  point  or  place  near  to  a  stream  called  the  Western 
.Run,  where  a  new  road  has  been  commenced,  and  the  Balti- 
more and  Reister's  Town  Turnpike  Road,  nearly  opposite  to  John 
Armstrong's  gate,  in  the  said  county;  and  although  the  com- 
plainants have  applied  for  and  obtained,  and  caused  to  be  duly 
served,  a  writ  of  certiorari  directed  to  the  said  justices  of  the 
Levy  Court,  commanding  them  to  certify  the  record  of  the 
said  order,  and  of  the  application  and  other  proceedings  on 
which  the  said  order  was  made,  with  all  things  touching  the 
same,  to  the  judges  of  Baltimore  County  Court,  as  a  court  of 
common  law,  for  the  purpose  of  having  the  same  heard,  ad- 
judged and  determined  as  to  law  and  justice,  shall  appertain; 
yet,  so  it  is,  that  a  certain  David  Williamson,  junior,  (the  de- 
fendant and  appellant,)  well  knowing  that  the  said  order  of  the 
Levy  Court  was  irregularly  and  improperly  passed,  but  pre- 
tending and  alleging  that  the  land  over  which  the  said  road 
passed,  belongs  to  him,  although  no  part  of  it  had  ever  been  in 
his  possession,  and  without  any  good  right  or  lawful  authority 
so  to  do,  has  proceeded  by  himself  and  his  agents  and  servants, 
to  obstruct  and  shut  up  the  part  of  the  said  public  road  de- 
scribed in  the  writ  of  certiorari  aforesaid,  by  erecting  fences 
and  walls  of  wood  and  stone,  and  placing  other  obstructions  on 
and  across  the  said  road,  so  as  to  entirely  stop  and  prevent  the 
complainants  from  travelling  on  or  using  the  same,  as  they 
were  heretofore  accustomed,  and  yet  have  a  right  to  do;  there- 
by causing  great  inconvenience  and  injury  to  the  complainants. 
That  the  said  Wyse,  when  in  pursuance  of  his  duty  as  supervi- 


OF  MARYLAND.  187 


Williamson  vs.  Carnan — 1829. 


SOT  of  the  said  road,  was  proceeding  to  remove  the  said  fences 
and  other  obstructions,  from  and  out  of  the  said  road,  and  clear 
the  same,  as  by  law  directed,  the  said  Williamson  forcibly  and 
with  violence,  prevented  him  from  opening  and  clearing  the 
said  road,  and  wholly  refused,  and  still  refuses  to  permit  him  to 
perform  his  said  duty  as  supervisor,  and  threatens  to  use  per- 
sonal violence  to  and  against  him,  and  every  other  person  who 
shall  attempt  to  open  and  clear  the  said  road,  or  to  remove  any 
of  the  fences  or  other  obstructions  therefrom,  or  to  travel  on  or 
over  the  said  part  of  the  public  road  so  by  him  obstructed.  All 
which  actings,  &c.  The  bill  then  enumerates  certain  interrog- 
gatories  to  be  answered  by  the  said  Williamson,  and  concludes 
with  a  prayer  for  a  writ  of  injunction,  to  be  directed  to  the  said 
Williamson,  his  counsellors,  &c.  commanding  and  enjoining 
him  and  every  of  them,  that  he  and  they  do  absolutely  desist 
from  further  obstructing  and  continuing  to  obstruct  and  shut  up, 
all  that  or  any  part  of  the  public  road  called  the  Garrison  Fo- 
rest Road,  as  heretofore  used  and  travelled  on,  &c.  and  particu- 
larly that  part  of  the  said  road  between,  &c.  and  also  that  he 
and  they  do  absolutely  desist  from  preventing  by  force,  &c.  J. 
»M.  Wyse,  the  supervisor  of  the  said  road,  or  whosoever  else 
shall  be  appointed  supervisor  of  the  said  road,  his  agents,  &c. 
from  removing  all  obstructions  whatever,  from  and  out  of  the 
said  road,  and  clearing,  opening  and  repairing  the  same;  and 
from  preventing  or  hindering  the  complainants  or  their  servants, 
or  any  other  citizens  of  this  state,  from  travelling  and  using  the 
said  road  as  a  public  highway,  in  the  same  manner  as  it  has 
heretofore  been  used,  until  the  further  order  of  the  court  in  the 
premises;  prayer  also  for  a  subpcenaio  the  said  Williamson,  &c. 

The  writ  of  injunction  and  subpcena  were  ordered,  and  issued 
accordingly,  and  were  duly  served  by  the  sheriff  of  Baltimore 
county. 

The  answer  of  the  defendant,  filed  on  the  13th  of  May,  1826, 
states,  that  he  is  the  owner  and  occupier  of  divers  tracts  or  parts 
of  tracts  of  land,  adjacent  to  each  other,  situate,  lying  and  being  in 
Baltimore  county,  and  binding  in  part  on  the  eastern  side  of  the 
Baltimore  and  Reister^Town  Turnpike  Road,  between  the  sixth 


l.-s          CASES  IN  THE  COURT  OF  APPEALS 

Williamson  vs.  Carnan — 1829. 

ami  seventh  mile  stones,  and  that  the  road  mentioned  in  bill  of 
complaint  of  the  complainants,  did  heretofore  pass  transversely 
through  the  lands  of  the  defendant  to  the  said  Turnpike  Road, 
above  the  sixth  mile  stone,  and  the  defendant  conceiving  himself 
greatly  aggrieved  and  injured  by  the  said  location  of  the  said 
road,  made  known  to  his  neighbours,  and  amongst  others,  to 
i  al  of  the  complainants,  and  especially  to  John  «M.  Wyset 
that  he  intended  to  make  application  to  the  Levy  Court  of  Bal- 
timore county  to  alter  the  location  of  the  said  road ;  and  that  on 
or  about  the  10th  of  Ferbuary,  1823,  the  said  Wyse,  acting  for 
and  on  behalf  of  the  defendant,  wrote  and  posted  up  the  notice 
of  an  intended  application  to  the  Levy  Court  aforesaid.  The 
answer  then  stated  that  affidavits  were  made  by  certain  per- 
sons, tliat  copies  of  the  said  notice  were  posted  up  at  certain 
houses  to  which  public  resort  was  had,  near  the  road  in  ques- 
tion, which  affidavits  he  exhibited.  That  on  the  21st  of  Feb- 
ruary, 1 823,  the  defendant  made  application,  in  writing,  to  the 
Levy  Court  aforesaid,  that  the  said  road  might  be  altered;  and 
that  the  application  was  presented  by  the  said  Wyse  to  the  said 
court  on  behalf  of  the  defendant,  he  the  said  Wyse,  at  the  same 
time,  urging  to  the  court  the  propriety  of  grantirig  the  said 
application  to  the  defendant,  who  was  then  absent  from  the 
state  on  business.  That  at  March  term,  1823,  the  said  Car- 
rum,  &c.  joint  complainants  in  this  cause,  and  a  certain  T.  Rit- 
ter,  by  their  petition  in  writing,  addressed  to  the  Levy  Court 
aforesaid,  set  forth  that  they  were  not  opposed  to  the  private 
interest  of  the  defendant  in  the  said  projected  alteration ;  but 
asked  the  said  court  to  require  adequate  security  on  the  part 
of  the  defendant,  t®  make  the  new  piece  of  road  every  way 
good  and  substantial.  That  after  the  return  of  the  defendant, 
on  the  21st  of  July,  1823,  he  procured  from  the  said  Wyse  and 
one  T.  II.  Belt,  then  living  in  the  neighbourhood,  a  petition  in 
writing,  setting  forth  that  it  would  be  a  public  benefit  to  have 
the  said  road  altered ;  and  praying  that  the  petition  of  this 
defendant  might  be  granted.  Which  said  petition  was  presen- 
ted to  the  said  Levy  Court.  That  on  the  1 1th  of  August,  1823, 
the  Levy  Court  caused  a  commission  to  be  issued  to  Caleb 


OF  MARYLAND.  189 

Williamson  vs.  Carnan — 1829. 

Merryman,  fyc.  three  respectable  free  holders  of  the  county, 
to  locate  a  road  as  prayed  for  by  this  defendant.  That  the 
said  commissioners  met  on  the  premises  pursuant  of  the  said 
commission;  that  on  the  1st  of  September,  1823,  the  said 
Jehu  McAllister,  SfC.  three  of  the  complainants,  and  others 
being  then  present,  made  a  new  location  to  the  said  road  and 
caused  a  plot  thereof  to  be  made,  and  made  return  of  all  pro- 
ceedings to  the  said  Levy  Court;  and  that  on  the  10th  of  April, 
1826,  the  Levy  Court  passed  an  order  that  "  all  that  part  of 
the  old  Garrison  road  leading  through  the  land  of  David  Wil- 
liamson,  jun.  commencing  at  the  letter  B,  (marked  on  the  plat 
returned  by  the  commissioners  heretofore  appointed  by  this  court 
to  alter  and  straighten  and  amend  the  same)  and  from  thence  to 
the  letter  C,  at  the  Reister^s  Town  Turnpike  road,  also  marked  on 
the  said  plat,  be  shut  up  and  closed ;  the  same  having  been  ren- 
dered useless  by  the  alteration  and  amendment  made  on  the  said 
road  by  the  said  commissioners,  adopted  and  approved  by  this 
court."  That  the  said  road  so  altered  as  aforesaid,  is  in  every 
respect  a  shorter  and  better  road  than  the  old  road.  That 
immediately  on  the  passage  of  the  said  order  last  mentioned, 
by  the  Levy  Court,  this  defendant,  as  he  conceived  he  had  a 
right  to  do,  proceeded  to  connect  his  fences  and  enclose  his 
lands,  and  had  the  same  actually  enclosed  on  the  10th  of  April 
last  mentioned ;  and  that  since  that  time  he  has  removed  a  part 
of  the  inner  fence,  whereby  the  bed  of  the  old  road  is  thrown 
into  a  field  now  in  actual  cultivation.  He  admits  that  on  the  18th 
of  April,  1825,  the  said  Wyse,  was  appointed  supervisor  as  hath 
been  stated ;  but  that  the  said  appointments  are  annual  appoint- 
ments, and  that  it  hath  not  been  renewed;  and  that  under  the  said 
order  of  the  10th  of  April  last  past,  all  that  part  of  the  said  road 
as  laid  down  upon  the  said  plat  from  B  to  C,  which  passed  through 
the  lands  of  the  defendant,  ceased  to  be  a  public  road,  if  the  same 
ever  was  a  public  road.  The  defendant  charges  it  to  be  true  that 
neither  the  public  good,  nor  their  own  advantage,  but  private 
malice  and  resentment  produced  by  other  causes  than  the  sup- 
posed injury  from  the  alteration  of  the  said  road,  have  induced 
the  said  Wyse  and  some  of  his  confederates  to  make  this  at- 


190         CASES  IN  THE  COURT  OF  APPEALS 

Williamson  vs.  Carnan — 1829. 

tempt  to  injure  the  defendant.  That  each  and  every  one  of 
the  complainants  hath  other  and  better  roads  to  mill,  to  market 
and  to  church,  than  the  road  heretofore  passing  through  the 
farm  of  the  defendant.  He  denies  that  the  said  road  has  been 
used  as  a  public  road  for  upwards  of  fifty  years,  or  that  there  is 
any  record  in  the  Levy  Court  calling  for  a  public  road  leading 
through  the  lands  of  this  defendant  He  admits  that  an  appli- 
cation hath  been  made  for  a  certiorari  as  hath  been  stated ;  but 
he  saith  that  the  road  passing  through  his  farm  had  been  closed 
up  and  a  part  of  the  inner  enclosures  removed,  before  any 
application  for  the  same.  That  the  re-opening  of  the  same, 
particularly  at  this  time,  would  be  attended  with  great  and  irre- 
parable loss  and  injury  to  the  defendant.  He  admits  that  after 
he  had  closed  the  said  road  as  aforesaid,  the  said  Wyse,  not  in 
pursuance  of  his  duty  of  supervisor,  as  is  falsely  charged  in 
the  complainants  bill,  he  the  said  Wyse  at  the  time  well  know- 
ing of  the  order  of  the  Levy  Court  of  the  10th  of  April  last, 
under  and  from  whom  he  derived  his  said  pretended  authority, 
but  for  the  sole  purpose  of  gratifying  his  malice  and  resentment 
against  the  defendant,  did  attempt  to  pull  down  and  remove  the 
fence  of  the  defendant ;  and  the  defendant  possessing  the  pow- 
er, and  feeling  himself  justified  in  resisting  such  lawless  invasion 
of  his  rights,  did  prevent  the  said  Wyse  from  passing  over  and 
through  his  farm.  That  no  person  except  the  said  Wyse,  and 
J\f.  Turner  (also  one  of  the  complainants,)  which  said  Wyse  is 
not  at  this  time  a  freeholder  in  the  said  county,  have  ever  at- 
tempted or  requested  permission  to  pass  through  the  farm  of  the 
defendant — another  and  a  better  road  having  been  previously 
provided.  He  admits  he  has  closed  the  road  referred  to  from 
B  to  C  as  designated  on  the  plat.  He  also  admits  that  for  some 
years,  but  cannot  state  how  many,  the  said  road  had  been  occa- 
sionally used  by  the  neighbourhood ;  and  that  he  claims  title  to 
the  land  over  and  to  the  land  on  both  sides  of  which  the  said 
road  passes,  by  purchase,  and  has  been  in  possession  thereof 
several  years.  He  denies  all  and  all  manner  of  combination,  &c. 
Prayer  that  the  said  injunction  may  be  dissolved,  &c. 


OF  MARYLAND.  191 


Williamson  vs.  Carnan. — 1829. 


The  defendant  exhibited  the  several  documents,  &c.  referred 
to  in  his  answer. 

THE    PLAT    REFERRED    TO. 


The  proceedings  having  been  transmitted  to  the  Court  of 
Chancery  as  before  mentioned,  the  defendant  on  the  15th  of 
May,  1826,  by  his  petition  to  the  Chancellor,  stated,  that  the 
continuance  of  the  injunction  heretofore  issued  will  be  attended 
with  great  and  irreparable  damage,  loss  and  injury  to  the  pe- 
titioner. He  therefore  prays,  that  the  Chancellor  will  pass  an 
order  limiting  an  early  day  for  the  hearing  of  the  motion,  (which 
he  had  entered  on  the  docket,)  to  dissolve  the  injunction. 

BLAND,  Chancellor,  15th  May,  1826.  In  cases  where  the 
Chancellor  entertains  a  doubt  as  to  the  propriety  of  granting 
an  injunction  at  all,  or  where,  /when  granted,  it  operates  in 
restraint  of  public  commissioners  for  the  opening  a  road,  street, 
or  the  like;  or  it  altogether  stops,  or  retards,  or  embarrasses  the 
operation  of  a  large  manufacturing  establishment,  or  restrains  a 
public  ferry,  in  these  and  some  other  cases  of  a  very  peculiar 
nature,  it  has  been  the  practice  in  the  first  instance,  or  on 
application,  to  appoint  a  very  early  day  for  hearing  of  the 
motion  for  a  dissolution  of  the  injunction,  and  that  too,  either 
with  or  without  answer.  But  according  to  the  defendant's  own 
showing,  in  this  case,  this  injunction  operates  in  restraint  of  a 


192         CASES  IN  THE  COURT  OF  APPEALS 


Williamson  rs.  Carnan. — 1829. 


right  which  he  has  but  recently  acquired,  or  has  not  long 
decidedly  and  exclusively  enjoyed.  There  being,  then,  nothing 
in  this  case  of  so  peculiar  a  nature  as  to  require  a  departure 
from  the  general  rule,  it  must,  therefore,  as  in  other  cases  where 
individuals  only  are  restrained,  take  the  course  of  the  court; 
and  the  foregoing  petition  is  hereby  dismissed  with  costs. 

Afterwards,  on  the  25th  of  May,  1826,  the  Chancellor,  on 
motion  of  the  defendant,  passed  an  order,  that  the  motion  to 
dissolve  the  injunction,  stand  for  hearing  at  the  next  term,  pro- 
vided a  copy  of  the  order  be  served  on  the  complainants,  or 
their  solicitor  before,  &c.  The  copy  was  duly  served. 

BLAND,  Chancellor,  (September  term,  1826.)  This  case 
standing  ready  for  hearing,  the  motion  to  dissolve  the  injunction, 
and  the  solicitors  for  each  of  the  parties  having  been  heard, 
the  proceedings  were  read  and  considered. 

There  can  be  no  doubt,  from  the  act  of  1821,  ch.  152,  that 
the  Levy  Court  of  Baltimore  county  have  the  jurisdiction  and 
power  of  "opening  a  new  road,  or  of  vacating  or  altering  an 
old  road."  Whether  that  tribunal  has,  in  this  instance,  pro- 
ceeded to  exercise  its  jurisdiction  upon  this  subject  correctly 
or  erroneously;  or  has,  in  any  respect,  neglected  or  disregarded 
the  prescribed  modes  and  forms,  is  not  for  the  Chancellor  to  de- 
termine ;  because  he  has  no  revising  or  superintending  authority 
over  it 

The  object  of  the  injunction  was  not  to  touch  or  impeach  the 
jurisdiction  of  the  Levy  Court;  but  to  stop  the  further  proceed- 
ings of  the  party,  upon  the  ground,  that  there  were  some  cir- 
cumstances in  the  case  which  showed,  that  he  ought  not  to  be 
permitted  to  do  the  act  complained  of,  until  it  had  been  finally 
directed  or  sanctioned  by  that  jurisdiction,  or  superior  and 
controlling  authority. 

It  appears,  that  the  Levy  Court,  on  the  10th  of  April,  1826, 
passed  an  order  directing  the  road  in  question  to  be  closed;  and 
also,  that  on  the  14th  of  the  same  month,  the  complainants  ob- 
tained a  writ  of  certiorari  to  remove  the  proceedings  of  the 
Levy  Court  into  the  County  Court  for  their  revision.  It  does 
not  distinctly  appear,  that  the  order  of  the  Levy  Court  was  of 


OF  MARYLAND.  193 


Williamson  vs.  Carnan. — 1829. 


such  a  nature,  that  its  execution  could  not  be  suspended  by  a 
writ  of  certiorari,  until  the  matter  thereof  could  be  heard  and 
decided  upon  by  the  County  Court.  It  is  no  where  in  the  bill 
or  answer,  spoken  of  or  stated  to  be  an  order  of  that  character. 
And  whether  the  County  Court  have  the  power  to  suspend, 
revise  or  reverse  such  an  order,  is  not  for  this  court  to  determine. 
That  the  writ  of  certiorari  did  issue,  has  been  admitted;  and 
for  aught  that  appears,  is  still  depending.  It  appears  that  the 
defendant  did  obstruct  the  old  road,  while  the  question  for 
vacating  it,  was  still  subjudice;  after  the  Levy  Court  had  passed 
their  order,  but  before  it  had  been  affirmed  or  decided  upon  by 
the  County  Court,  to  which  it  had  been  carried  by  the  writ  of 
certiorari;  and,  therefore,  he  was  properly  restrained  by  the 
injunction.  For  although  this  court  has  no  power  to  revise  the 
proceedings  or  to  correct  the  errors  of  the  Levy  Court,  or  the 
County  Court;  yet,  it  will  restrain  a  party  from  doing  an  act 
injurious  to  an  individual,  or  which  may  be  prejudicial  as  a 
public  nuisance,  pending  any  judicial  proceedings  before  those 
tribunals,  by  which  the  authority  to  do  the  act,  or  its  lawfulness 
is  to  be  determined.  If  the  County  Court  shall  determine  upon 
the  return  to  the  writ  of  certiorari,  that  the  order  of  the  Levy 
Court  of  the  10th  of  April,  was  final  and  conclusive;  or  that  it 
be  affirmed;  or  that  the  writ  of  certioi'ari  be  quashed,  then  the 
defendant  will  stand  justified  under  that  order,  in  going  on  to 
obstruct  and  close  the  old  road,  in  question,  so  far  as  it  passes 
over  his  land;  and  this  injunction  must  be  dissolved.  If  on  the 
contrary,  the  County  Court  shall  reverse  or  annul  the  order 
of  the  Levy  Court,  the  restraint  /upon  the  defendant  must  be 
continued.  It  is  proper  that  the  parties  should  be  held  in  their 
present  situation  to  await  that  decision. —  Ordered,  that  the 
injunction  be  continued  until  the  hearing,  or  further  order. 

At  December  term,  1827,  the  Defendant,  by  his  petition  to 
the  Chancellor,  prayed  leave  to  amend  his  answer,  &c.  But 
the  Chancellor  refused  the  leave,  and  dismissed  the  petition. 
At  the  same  term,  the  complainants,  by  their  petition,  stated 
that  it  would  appear  by  the  annexed  affidavits,  that  the  defendant 
had  totally  disregarded  the  injunction,  and  caused  the  road 
VOL.  I.— 25. 


101          CASES  IN  THE  COURT  OF  APPEALS 

AN  illiamson  vs.  Carnan — 1829. 

therein  mentioned,  to  be  obstructed,  &c.  Prayer  for  an  attach- 
ment against  the  defendant,  and  that  he  may  be  compelled  to 
place  the  same  road  in  the  same  situation  as  it  was  previously 
to  his  closing  the  same  on  the  1 3th  of  the  present  month. 

An  attachment  was  accordingly  ordered  and  issued  returna- 
ble forthwith;  and  the  sheriff  returned  the  said  writ,  that  he 
had  attached  the  defendant. 

At  March  term,  1828,  the  complainants  again  by  their  petition 
stated,  that  the  defendant,  disregarding  the  said  injunctions,  did 
by  his  agents,  servants  and  himself,  caused  the  road  mentioned 
in  the  injunction,  to  be  obstructed  on  or  about  the  13th  of  De- 
cember last,  by  causing  fences,  &c.  to  be  erected,  and  placing 
other  obstructions  on  and  across  the  same,  &c.  as  will  appear 
by  the  affidavits  filed  on  the  last  term.  That  although  an 
attachment  issued,  and  was  duly  served  on  the  defendant,  it  had 
not  had  the  effect  of  causing  him  to  remove  the  obstructions 
then  existing;  but  as  would  appear  by  the  annexed  affidavit,  he 
had  additionally  obstructed  the  s.aid  road,  &c.  Prayer  for  an. 
attachment  against  the  defendant,  and  that  he  be  compelled  to 
place  the  said  road  in  the  same  situation  as  it  was  previously 
to  his  closing  the  same  on  or  about  the  13th  of  December  last. 

An  attachment  was  again  ordered  and  issued,  returnable 
forthwith  ;  and  was  duly  served,  &c.  The  defendant  appeared 
and  filed  his  petition,  in  which  he  stated,  that  the  proceedings 
of  the  Levy  Court  in  reference  to  the  said  road,  having  been 
set  aside  by  Baltimore  County  Court,  upon  the  hearing  and  ex- 
amination thereof,  under  the  writ  of  certiorari,  which  had  been 
issued,  &c.  as  will  appear  by  a  transcript  of  the  proceedings 
exhibited ;  not  upon  the  merits  of  the  case,  but  for  defect  of 
form,  as  will  appear  by  a  copy  of  the  opinion  of  the  said  court. 
That  the  petitioner  being  advised  that,  that  part  of  the  said 
road  called  the  Garrison  Forest  Road,  mentioned  in  the  pro- 
ceedings, having  become  a  public  road  and  highway,  he,  to- 
gether with  other  petitioners,  taxable  inhabitants  of  the  county, 
made  a  new  application  to  the  Levy  Court,  to  alter  and  close 
the  said  part  of  the  said  road;  and  that  the  complainants  had 
notice  thereof,  and  attended  a  meeting  of  the  commissioners 


OF  MARYLAND.  195 


Williamson  vs.  Carnan. — 1829. 


appointed  under  the  said  application,  and  opposed  the  confir- 
mation of  the  return  made  by  the  said  commissioners.  That 
on  the  13th  of  December,  1827,  an  order  was  passed  by  the 
commissioners  of  the  county  to  whom  the  powers  and  dutie^here- 
tofore  exercised  by  the  Levy  Court,  have  been  transferred,  that 
all  that  part  of  the  before,  mentioned  road  be  shut  up  and 
closed ;  and  that  the  petitioner,  or  any  other  person  or  persons, 
through  whose  lands  the  said  old  road  may  have  been  departed 
from,  by  such  altering,  &c.  are  authorized  to  shut  up  and  close 
the  same,  as  by  reference  to  a  copy  of  the  said  proceedings 
exhibited  will  appear.  That  the  complainants  had  knowledge 
of  the  said  order  of  the  said  commissioners,  and  that  the  said 
order  being  final  and  conclusive  without  appeal,  and  no  writ  of 
certiorari  having  been  applied  for,  and  the  said  road  so  author- 
ized to  be  closed,  passing  transversely  through  the  farm  of 
the  petitioner ;  and  the  complainants,  by  the  altering  of  the  said 
road,  having  another  and  a  better  and  shorter  road,  and  the 
petitioner  being  greatly  aggrieved  by  the  passing  of  the  said 
road  through  his  lands,  and  conceiving  himself  fully  authorised 
to  do  so  by  the  said  order,  he,  by  virtue  of  the  said  order,  and 
not  as  he  avers,  in  contempt  of  the  court,  did  proceed  to  close 
the  said  road ;  and  that  he  shut  up  and  closed  the  same  without 
force,  &c.  and  before  any  attachment  had  issued  against  him. 
That  since  he  has  closed  the  said  road,  he  hath  removed  his 
inner  fences,  and  planted  an  orchard  on  either  side  of  and 
through  the  bed  of  the  said  road;  and  that  the  removal  of  his 
fences  will  be  attended  with  great  and  irreparable  damage  to 
him.  Prayer  that  the  said  road/ may  be  suffered  to  remain 
closed ;  and  that  he  may  be  released  from  custody,  and  that  the 
attachment  may  be  quashed. 

Among  the  several  exhibits  filed  with  the  preceding  petition, 
was  the  following,  being  the  opinion  of  Baltimore  County 
Court,  in  May,  1827,  on  deciding  on  the  certiorari  which  had 
been  issued. 

ARCHER,  Ch.  J.  This  court  assumes  to  itself  no  power  or 
authority  to  review  the  judgment  of  the  Levy  Court,  as  to  the 
fact,  whether  the  public  convenience  required  the  alteration  in 


1%         CASES  IN  THE  COURT  OF  APPEALS 

Williamson  vs.  Carnan. — 1829.- 

the  road  mentioned  in  the  proceedings  in  this  case.  T/ie  Levy 
Court  is  the  sole  and  proper  tribunal,  to  which  the  laws  have 
confided  the  adjudication  of  that  matter,  and  doubtlessly,  they 
have«upon  this  point  made  a  correct  determination.  But  whe- 
ther they  have  been  right  or  wrong,  is  not  my  province  to  de- 
termine. I  cannot  sit  as  an  appellate  court,  to  review  their 
judgment.  The  laws  in  this  respect  have  assigned  to  me  other 
duties,  to  the  performance  of  which  I  proceed.  I  have  care- 
fully examined  all  the  authorities  referred  to,  together  with  the 
acts  of  the  General  Assembly,  conferring  powers  on  the  Levy 
Court,  and  the  constitution  and  laws  giving  powers  to  this 
court,  and  will  briefly  present  the  conclusions  to  which  I  have 
arrived.  It  would  have  been  satisfactory  to  the  parties  con- 
cerned, as  well  as  gratifying  to  myself,  to  have  presented  par- 
ticularly the  reasons  by  which  I  have  been  led  to  these  conclu- 
sions; but  the  pressure  of  business  at  the  close  of  the  term, 
gives  me  scarcely  more  leisure  than  is  indispensably  necessary 
to  examine  and  adjudge  the  matter  submitted  to  me.  And  in 
this  case,  I  should  not  have  reduced  any  thing  to  writing,  but 
from  a  belief  that  some  of  the  conclusions  to  which  I  have  ar- 
rived, might,  upon  future  occasions,  be  useful  to  the  subordinate 
tribunals,  as  a  guide  in  similar  matters,  which  might  come  be- 
fore them ;  and  at  the  same  time,  inform  them  and  others  inter- 
ested, of  the  powers  and  obligations  of  this  court,  in  relation 
to  inferior  judicial  jurisdictions  and  their  proceedings.  In  this 
case  the  following  principles  are  adjudged  and  settled  by  this 
court. 

1.  That  every  inferior  jurisdiction,  whether  created  by  a 
public  or  a  private  law,  is  subject  to  have  its  proceedings 
inspected   either  by  appeal  or  by  cerliorari  and  mandamus, 
where  such  jurisdiction  acts  judicially.     1  Salk.  146.     I   Ld. 
Raym.  580.     They  will  be  coerced  to  perform  their  duties, 
and  restrained  and  confined  within  their  proper  limits  as  pre- 
scribed by  law. 

2.  That  where  these  jurisdictions  act  in  a  summary  manner, 
or  in  a  new  course  different  from  the  common  law,  a  cerliorari 
is  the  peculiar  and  appropriate  remedy;  as  in  such  a  case,  a 


OP  MARYLAND.  197 


Williamson  vs.  Carnan. — 1829. 


writ  of  error  will  not  lie.  Greenvelt  vs.  Burwell,  1  Salk.  263. 
Com.  Rep.  76.  Israel  vs.  Jlllen,  decided  in  Baltimore  County 
Court. 

3.  That  a  certiorari  does  not  go  to  try  the  merits  of  the  ques- 
tion^ but  to  see  whether  the  limited  jurisdictions  have  exceeded 
their  bounds.     2  Burr.  1042. 

4.  That  a  certiorari  will  lie  after  judgment,  where  the  juris- 
diction proceeds  in  a  summary  manner,  and  in  a  course  differ- 
ent from  the  common  law.     \  Salk.  263.     Com.  Dig.  76.    2 
Burr.  1042. 

5.  That  a  tertiorari  may  issue  even  after  judgment  executed, 
where  a  limited  authority  has  been  transcended  by  inferior  ju- 
risdictions, in  cases  where  no  writ  of  error  lies,  for  the  purpose 
of  quashing  their  proceedings. 

6.  That  in  this  case,  the  Levy  Court  of  Baltimore  County,  in 
their  power  to  open  and  alter  roads,  is  a  tribunal  of  limited 
jurisdiction,  proceeding  in  a  summary  method,  and  in  a  course 
unknown  to  the  common  law ;  and  that  in  their  confirmation  of 
the  return  of  the  commissioners,  under  the  act  of  1821,  ch.  152, 
in  relation  to  roads,  they  act  judicially  and  not  ministerially. 

7.  That  without  the  notice  required  by  the  act  of  1794,  ch. 
52,  they  have  no  power  to  open,  amend,  alter,  change,  widen 
or  straighten  a  road. 

8.  That  until  a  number  of  inhabitants  petition  for  a  road 
under  the  act  of  1821,  ch.  152,  they  have  no  power  to  appoint 
a  commissioner,  or  to  pronounce  a  judgment  on  any  return  of 
commissioners. 

9.  That  a  number  of  inhabitants  within  the  meaning  of  the 
law,  did  not  petition  the  Levy  Court  in  this  case,  till  July,  1823. 

10.  That  the  notice  required  by  law,  should  have  corres- 
ponded with  the  time  when  a  legal  petition  was  first  preferred 
to  the  Levy  Court. 

11.  That  the  notice  being  to  March  term,  and  no  petition 
within  the  meaning  of  the  law  until  July,  the  notice  was  not 
such  as  is  required  by  law. 

12.  That  this  court  cannot  presume  a  notice  in  conformity 
with  law,  when  the  papers  and  record  returned  show  an  illegal 
and  insufficient  one. 


198          CASES  IN  THE  COURT  OF  APPEALS 

- 
\\  illiatnson  vs.  Carnan — 1829. 

13.  That  there  being  no  notice  within  the  meaning  of  the 
law  conferring  power  on  the  Levy  Court,  the  whole  proceed- 
ings an-  contm  non  judice  and  void. 

14.  That  the  judgments  and  orders  of  the  Levy  Court  of  the 
7th  of  Octoher,  1823,  and  of  the  10th  of  April,  1826,  ought 
to  be,  and  are  accordingly  quashed. 

The  defendant  by  his  petition  to  the  Chancellor,  prayed  that 
the  injunction  might  be  dissolved.  The  Chancellor  directed 
that  the  motion  for  dissolving  the  injunction  stand  for  hearing 
on  the  13th  of  May  following;  provided  a  copy  of  his  order, 
&c.  be  served  on  the  complainants  on  or  before,  &c. 

The  complainants  then  moved  the  court  to  pass  an  order 
committing  the  defendant  to  the  gaol  of  Anne  Jlrundd  county, 
for  a  contempt  by  him  committed,  in  not  obeying  the  injunction. 

Hi. AND,  Chancellor,  (23d  of  April,  1828,)  In  this  case, 
David  Williamson  having  been  brought  into  court  on  the  said 
attachment,  and  having  made  answer  on  oath  to  the  alleged 
violation  of  the  injunction ;  and  the  solicitors  of  the  parties  hav- 
ing been  heard ;  and  it  appearing,  that  the  acts  done  in  violation 
of  the  injunction  were  done  under  erroneous  advice,  and  an  ap- 
prehension that  he  had,  by  other  judicial  proceedings  of  an- 
other court,  been  authorised  to  do  the  same — Ordered,  that  the 
said  Williamson  do  now,  forthwith,  and  with  the  least  possible 
delay,  entirely  remove  and  take  away  all  fences,  stones,  timber, 
trees,  and  all  manner  of  hindrances  and  obstructions,  which  he, 
his  agents  or  servants  may  have  placed  or  put  in  or  upon  the 
said  road,  in  the  proceedings  mentioned;  and  which  he,  his 
agent  or  servants  were  prohibited  from  placing  or  putting  in  or 
upon  the  said  road  by  the  said  injunction.  Further  ordered, 
that  the  said  Williamson  pay  all  the  costs  of  the  proceedings 
in  relation  to  this  process  of  attachment;  and  that  he  stand 
committed  until  the  said  costs  are  paid. 

The  defendant,  after  paying  the  said  costs,  appealed  from 
the  above  order  to  this  court,  and  entered  into  bond  with  secu- 
rity (which  was  approved)  for  prosecuting  the  appeal. 

The  complainants,  on  the  5th  of  May,  1828,  by  their  petition, 
stated,  that  since  the  order  of  the  Chancellor  of  the  23d  of 


OF  MARYLAND.  199 

Williamson  vs.  Carnan — 1829. 

April,  1828,  the  defendant  had  not  removed  the  obstructions 
from  the  said  road,  and  had  declared  and  avowed  that  he  would 
not  obey  the  said  order,  and  that  he  would  not  remove,  or  permit 
to  be  removed  the  said  obstructions,  &c.  Prayer  for  an  attach- 
ment against  the  defendant,  to  answer  for  the  contempt  so  by 
him  committed  and  wilfully  persisted  in,  contrary  to  this  court, 
and  for  the  continuance  of  the  breach  of  the  said  injunction. 
And  also,  that  by  a  special  order  of  the  sheriff  of  Baltimore 
county,  may  be  authorized  and  directed  to  cause  all  the  said 
obstructions,  &c.  to  be  removed,  and  the  said  road  to  be  opened 
and  cleared  at  the  expense  of  the  defendant,  &c. 

An  attachment  was  ordered  and  issued  accordingly,  returna- 
ble forthwith;  and  was,  on  the  13th  of  May,  1828,  returned  by 
the  sheriff,  that  he  had  attached  the  defendant,  and  had  him 
ready  in  court  to  answer,  &c.  The  complainants  then  moved 
the  court  that  the  defendant  be  committed  to  the  gaol  of  Anne 
Jlrundel  county,  &c.  And  at  the  same  time,  the  complainants, 
by  their  suggestion  in  writing,  stated  that  the  defendant,  before 
the  filing  of  his  petition,  and  notice  of  motion  to  dissolve  the 
injunction,  had  committed  a  breach  of  the  injunction,  and  at  the 
time  of  filing  his  said  petition,  was  actually  in  custody  under 
attachment  for  his  contempt  in  committing  such  breach  ;  and  so 
continued  in  custody  until  the  order  of  the  23d  of  April  was 
passed,  which  order  he  has  not  obeyed;  but  has  wilfully,  and  in 
open  contempt  of  this  court  continued,  and  still  continues  his 
breach  of  the  said  injunction.  They  therefore  pray  that  no 
motion  on  behalf  of  the  defendant,  to  dissolve  the  said  injunc- 
tion, may  be  heard,  entertained  or  considered,  while  he  is  thus 
acting  in  open  and  wilful  contempt  of  this  court,  its  orders  and 
process.  That  proceedings  in  regard  to  the  opening  and  keeping 
open  the  said  road  as  a  public  highway,  are  now  depending 
before  the  commissioners  of  Baltimore  county,  the  lawful  and 
proper  tribunal  to  decide  on  the  shutting  up  or  continuing  open 
the  said  road  in  the  first  instance ;  subject  nevertheless,  to  have 
their  proceedings  in  relation  thereto,  reviewed  and  reversed,  or 
confirmed  by  the  County  Court.  Prayer  that  the  motion  to 
dissolve  the  injunction,  may  be  overruled,  &c. 


\ 
CASES  IN  THE  COURT  OF  APPEALS 

Williamson  rs.  Carnan— 1829. 

The  defendant,  on  the  Mth  of  May,  1H28,  in  his  answer  to- 
the  petition  of  the  complainants  of  the  5th  of  May,  1828,  denies- 
the  charge  in  the  petition  that  he  \\ill  not  permit  to  be  removed 
the  said  ohstructions,  &,c.  so  by  him  caused  to  be  placed  in  and 
upon  the  said  road.  That  the  injunction  did  not  require  any  act  to 
be  done  by  him.  He  is  not  conscious  of  having  violated  the  in- 
junction until  December,  1827.  He  refers  to  the  order  of 
the  2d  of  December,  1826,  showing  the  ground  on  which  tbe 
court  originally  interfered,  and  refused  then  to  dissolve  the 
injunction.  l>y  that  order  he  was  apprized  that  if  "  the  Coun- 
ty Court  shall  reverse  or  annul  the  order  of  the  Levy  Court,  the 
restraint  upon  the  defendant  must  be  continued."  He  admits 
after  the  decision  of  the  County  Court,  he  did  not  expect  a  dis- 
solution of  the  injunction.  It  was  the  fault  of  the  complainants 
that  it  was  not  made  perpetual.  The  answer  then  sets  out  the 
proceedings  of  the  Commissioners  of  the  County,  under  the  de- 
fendants new  application,  £c.  and  avers  that  the  order  of  the 
Commissioners  justified  his  acts  of  December,  1827,  and  wrould 
not  have  been  any  contempt  of  this  court,  even  if  the  injunction 
had  been  made  perpetual.  The  only  effect  of  a  perpetual  in- 
junction, would  have  been  to  prevent  the  defendant  from  claim- 
ing any  right  to  obstruct  the  road  in  virtue  of  the  order  of  the 
Levy  Court,  which  had  been  rescinded,  and  could  not  deprive 
him  of  the  right  of  filing  a  second  petition,  &c.  He,  therefore, 
in  the  month  of  December,  1827,  did  cause  fences  to  be  erected 
across  the  said  road,  as  stated  in  the  complainants  several  peti- 
tions of  the  4th  of  January  and  9th  of  April  last,  and  in  which 
petitions  the  complainants  for  the  first  time  prayed  the  court, 
among  other  things,  to  compel  the  defendant  to  place  the  said  road 
in  the  same  situation  that  it  was  previous  to  his  closing  the  same, 
"  on  or  about  the  1 3th  of  December  last."  That  the  acts  done 
on  OP  about  the  13th  of  December  last,  are  the  only  breaches  of 
the  injunction  of  which  the  complainants  at  the  time  of  filing 
their  petition  had  complained.  On  the  answer  of  the  defendant 
to  the  said  petition,  the  Chancellor  proceeded  to  pass  his  de- 
cree upon  the  wlrole  matter  tliereof.  He  refers  to  the  decree 
of  the  23d  of  April,  1828,  and  insists  that  even  if  the  erection 


OF  MARYLAND.  201 


Williamson  rs.  Carnan. — 1829. 


of  such  fences  and  obstructions  as  these  charged  in  the  several 
petitions  of  the  4th  of  January  and  9th  of  April,  could  be  consi- 
dered a  contempt  of  the  court,  he  is  not  now  to  answer  for  it,  as 
he  has  already  been  before  the  court  to  answer  the  said  char- 
ges, and  the  same  have  been  adjudicated.  The  said  petitions 
prayed  that  the  defendant  should  be  compelled  to  place  the 
said  road  in  the  same  situation  it  was  on  or  about  the  13th  of 
December  last,  and  did  not  require,  nay,  may  be  construed  to 
forbid  him,  to  remove  any  obstructions,  &c.  of  an  earlier  date — 
none  others  had  he  ever  been  required  to  remove.  Those 
which  had  been  placed  there  before  the  granting  of  the  injunc- 
tion, the  court  upon  the  ex  parte  application  of  the  complainants, 
could  not  command  him  to  remove.  The  language  of  the  in- 
junction was  to  desist,  and  did  not  and  could  not  command  him 
to  do.  That  the  first  order  of  this  court,  whether  in  the  form 
of  an  injunction  or  of  a  decree  in  the  premises,  commanding  the 
defendant  to  remove  or  take  away  any  fence,  stones,  &c.  is  to  be 
found  in  the  decree  of  the  23d  of  April,  1828.  This  decree  the 
defendant  admits  has  not  been  executed  by  him.  He  has  pray- 
ed an  appeal  from  it;  has  given  bond  with  approved  security, 
and  insists  that  the  same  operates  a  stay  of  all  further  proceed- 
ings until  the  same  is  affirmed,  or  the  defendant  fails  to  prose- 
cute it.  That  the  execution  of  the  decree  at  this  time  would 
deprive  him  of  every  benefit,  that  by  a  reversal  of  it,  should  it 
be  reversed,  he  would  gain,  &c.  Prayer  to  be  dismissed. 

BLAND,  Chancellor,  (20th  of  May,  1828.)  The  defendant 
having  been  brought  before  the  court  in  custody,  by  an  attach- 
ment upon  a  charge  of  contempt,  iia  having  committed  a  breach 
of  the  injunction  heretofore  granted  in  this  case  j  and  the  motion 
for  a  dissolution  of  the  injunction  standing  ready  for  hearing, 
the  solicitors  of  the  parties  were  heard  in  relation  to  both  of 
those  matters,  and  the  proceedings  read  and  considered. 

A  brief  review  of  this  case  seems  to  be  necessary  to  a  cor- 
rect understanding  of  the  matters  now  to  be  decided  upon. 
[The  Chancellor's  opinion  then  stated  the  facts,  proceedings, 
and  views  of  the  case,  as  before  set  out,  and  said,]  it  was  to 
this  state  of  the  pleadings  and  to  arguments  of  this  nature, 
VOL.  1—26. 


CASES  IN  THE  COURT  OF  APPEALS 

Williamson  vs.  Carnan.— 1829. 

I  addressed  myself  in  the  order  of  the  2d  of  December, 
1^,'G,  by  which  the  injunction  was  continued  until  the  hearing 
on  further  order.  The  defendant,  it  will  be  seen  by  his  an- 
swer and  his  motion  thereon  for  a  dissolution,  did  not,  as  it 
would  seem,  then  consider  an  order  of  the  Levy  Court  for  shut- 
ting up  the  road,  (even  admitting  it  to  have  been  in  all  respects 
a  final,  conclusive  and  irreversible  judgment,)  as  having  of  it- 
self the  effect  of  annulling  the  injunction,  or  as  virtually  dis- 
solving it,  without  any  motion  or  application  to  this  court  for 
that  purpose.  No  such  notion  had  been  in  any  manner  intima- 
ted or  suggested,  either  in  the  pleadings  or  arguments  as  they 
were  then  presented  to  this  court ;  and  it  never  once  occured  to 
me,  at  the  time  of  uniting  that  order,  that  any  such  notion  ever 
had  been,  or  would  be  advanced  or  attempted  to  be  sustained. 
Indeed  so  far  from  it,  the  contrary  is  clearly  deducible  from 
the  course  pursued  by  the  defendant  himself.  For,  although  he 
did  contend,  that  the  order  of  the  Levy  Court  for  closing  the 
road  was  conclusive ;  yet,  he  deemed  it  necessary,  and  then 
came  here  to  ask  a  dissolution  of  the  injunction  as  soon  as 
practicable;  because,  until  it  was  dissolved  by  this  court,  he 
could  not  take  the  benefit  of  that  legal  authority  which  he  had 
thus  obtained  from  a  competent  tribunal;  and  as  he  distinctly 
alleged,  the  continuance  of  it  would  be  attended  with  great  and 
irreparable  damage  and  loss  to  him.  Thus  expressly  admitting, 
that  so  long  as  the  injunction  remained  in  full  force,  and  unre- 
voked  by  this  court  itself,  he  would  not  be  justified  in  disobeying 
it  by  any  authority  which  he  could  obtain  from  any  other 
tribunal. 

The  granting  of  the  injunction  was  predicated  upon  the  fact, 
that  the  specified  lands  of  the  defendant  were  charged  with  a 
public  servitude  as  a  highway;  the  defendant  bottomed  his 
prayer  to  be  relieved  from  the  restraint,  upon  the  allegation, 
that  it  had  been  finally  discharged  from  that  servitude;  he  failed 
to  sustain  his  allegation;  and  the  injunction  was  continued. 

The  principle,  that  an  injunction  once  granted,  continues  in 
full  force  until  dissolved  by  the  court  by  which  it  has  been 
awarded,  is  so  entirely  obvious,  and  so  necessary  to  preserve 


OF  MARYLAND.  203 


Williamson  vs.  Carnan — 1829. 


harmony  among  the  several  branches  of  the  government ;  and 
to  prevent  any  one  tribunal  from  being  brought  into  collision 
with  the  legislature,  or  any  other  court  of  justice  which  may 
have  the  power  to  exercise  authority  upon  the  subject  to  which 
the  injunction  relates,  that  I  had  supposed  it  never  had  been,  or 
would  be  questioned  by  any  one.  And  my  order  of  the»2d  of 
December,  1826,  was  written  under  this  strong  impression. 
The  parlies,  by  the  proceedings  as  they  then  stood,  looked  to 
the  final  determination  upon  the  proceedings  of  the  Levy  Court 
by  the  County  Court,  as  that  decision  by  which  the  right  to  the 
highway  in  question,  was  to  be  put  at  rest;  and,  therefore,  I 
said,  that  they  must  be  held  in  their  then  situation,  to  await  that 
decision.  But  I  neither  intimated  nor  supposed,  that  the  parties 
were,  or  could  be  restrained  from  pursuing  any  legal  course 
whatever,  for  the  purpose  of  having  the  right  to  this  public 
road  finally  determined.  I  was  aware,  that  if  it  should  be  in 
any  way  legally  closed,  either  by  the  legislative  or  judicial 
authority,  this  defendant  would  be  entitled  to  be  relieved  from 
the  restraint  which  had  been  imposed  upon  him.  But,  I  did  not 
for  a  moment  suppose,  that  this  defendant,  after  the  obligation 
he  had  admitted  himself  to  be  under  to  obey  the  injunction,  not- 
withstanding the  legal  authority  he  had,  as  he  said,  obtained, 
would  at  any  time  afterwards,  attempt  to  disobey  it,  because  of 
any  other  legal  authority  which  he  might  believe  he  had  obtained 
in  any  other  manner  than  that  to  which  he  then  especially 
referred.  And,  it  is  clear  from  what  I  then  said,  that  I  expected 
to  hear  again  from  the  defendant  as  soon  as  he  had,  in  any 
manner  whatever,  succeeded  in  obtaining  a  final  and  complete 
legal  authority  for  closing  the  road,  which  the  injunction  had 
thus  restrained  him  from  obstructing.  In  short,  the  whole 
course  of  proceedings,  antecedently  to  this  period,  so  far  from 
warranting  the  inference  that  the  injunction  could  be  virtually 
dissolved  by  any  other  judicial  proceedings,  shows,  that  it  was, 
notwithstanding  any  such  proceedings,  to  be  considered  as  in 
full  force  until  dissolved  by  this  court  itself. 

On  the  3d  of  January  last,  the  defendant  filed  a  petition,  in 
which  he  states,  that  the  proceedings  of  the  Levy  Court  referred 


SOI          CASES  IN  THE  COURT  OF  APPEALS 

Williamson  r».  Carnan. — 1829. 

to  iii  the  bill,  had  been  taken  by  ccrtiorari  to  the  County  Court, 
and  by  that  court  set  aside;  that  he  had  made  another  applica- 
tion, and  had  obtained  an  order  for  closing  this  road ;  which 
order,  he  says,  being  final  and  conclusive  without  appeal,  and 
he  being  greatly  aggrieved  by  the  passing  of  the  old  road  over 
his  lafids,  and  conceiving  himself  fully  authorised  so  to  do,  by 
that  order,  did  in  virtue  thereof,  proceed  to  close  it  from  A  to  B, 
as  designated  on  the  plot,  [returned  under  the  last  order  for 
closing  the  road,]  and  that  he  shut  it  up,  without  force,  and 
without  opposition  from  any  one.  And  then  concludes  by  asking 
leave  to  file  an  amended  answer,  setting  forth  the  several 
matters  therein  stated,  and  that  the  bill  be  dismissed  upon  such 
terms  as  may  seem  just.  This  petition  not  being  sworn  to, 
and,  even  if  it  had  been  sustained  by  an  affidavit,  laying  no 
proper  ground  for  leave  to  amend  the  answer,  was,  by  an  order 
passed  on  the  next  day,  dismissed  with  costs. 

On  the  same  3d  of  January  last,  the  plaintiffs  also  filed  a 
petition  with  sundry  affidavits,  showing  that  the  road  had  been 
obstructed  and  closed  by  the  defendant,  in  disobedience  of  the 
injunction,  and  praying  for  an  attachment,  which  was  ordered, 
issued,  served,  and  returned  executed.  But  the  plaintiffs,  as  it 
seems,  suffered  it  to  pass  off  without  asking  to  have  any  thing 
done  upon  it.  On  the  9th  of  April  last,  the  plaintiffs  again  asked 
an  attachment  against  the  defendant  for  disobeying  the  injunc- 
tion, which  was  awarded;  and  on  the  22d  of  April  last,  he  was 
brought  before  the  court,  in  custody,  when  he  filed  his  petition 
on  oath,  with  a  reference  to  the  bill  of  injunction,  answer,  order 
and  attachment  for  contempt.  In  this  petition  he  sets  forth,  that 
the  proceedings  of  the  Levy  Court,  which  were  removed  by 
certiorari  to  the  Baltimore  County  Court,  having  been  there 
considered  and  quashed,  he  had  afterwards  made  a  new  appli- 
cation to  the  Levy  Court,  and  had  obtained  an  order  to  shut  up 
the  road  in  question ;  which  order  was  final  and  conclusive, 
without  appeal — no  writ  of  certiorari  having  been  applied  for. 
That  conceiving  himself  fully  authorised  to  close  the  old  road,  so 
far  as  it  passed  over  his  land,  and  not  in  contempt  of  this  court, 
he  did  shut  it  up  accordingly.  Whereupon,  he  prays  that  the 


OF  MARYLAND.  205 


Williamson  vs.  Carnan. — 1829. 


road  may  be  suffered  to  remain  closed,  that  he  may  be  released 
from  custody,  and  that  the  attachment  may  be  quashed. 

It  appears  then,  by  the  defendant's  petitions  of  the  3d  of  Jan- 
uary and  22d  of  April,  that  he  had  conceived  himself  fully 
and  legally  authorised  to  close  this  highway  by  virtue  of  the 
order  of  the  Levy  Court,  notwithstanding  the  injunction  of  this 
court,  which  had  positively  prohibited  him  from  closing  or  ob- 
structing it  in  any  way  whatever;  or,  in  other  words,  that  the 
final  order  he  had  obtained,  had  virtually,  yet  effectually  and 
completely  dissolved  and  annulled  the  injunction  heretofore 
granted  by  this  court.  The  defendant  made  no  application  or 
motion  to  have  the  injunction  dissolved  after  the  2d  of  Decem- 
ber, 1826,  until  the  22d  of  April  last.  He  has  not  even  deigned 
to  speak  of  the  injunction,  in  the  body  of  either  of  those  peti- 
tions, in  which  he  acknowledges  and  attempts  to  justify  the 
closing  of  the  road ;  and  yet,  in  the  first,  he  asks  to  be  permitted 
to  file  an  amended  answer,  and  to  have  the  bill  dismissed;  and 
in  the  second,  he  prays  that  the  road  may  remain  closed;  and 
that  he  may  be  discharged  from  the  attachment.  If  the  prayer 
of  his  first  petition  had  been  literally  and  fully  granted,  and  the 
bill  dismissed;  yet,  that  would  not  have  dissolved  the  injunction, 
unless  it  had  been  so  expressly  ordered.  By  the  second  peti- 
tion, this  court  is,  in  effect,  gravely  asked  to  make  a  most  ex- 
traordinary transit  over  all  its  own  proceedings,  into  those  of 
the  Levy  Court;  to  approve,  and  act  upon  them,  and  totally 
disregard  its  own.  For,  an  order  of  this  court,  as  prayed,  that 
the  road  should  be  suffered  to  remain  closed,  and  that  the  de- 
fendant should  be  discharged  ftpm  the  attachment,  most  mani- 
festly, could  stand  upon  no  other  foundation  than  a  complete 
affirmance  of  the  proceedings  of  the  Levy  Court,  and  an  entire 
disregard  of  all  the  previous  proceedings  of  this  court.  I 
never  before  heard  of  such  an  indirect  mode  of  obtaining  a 
virtual  dissolution  of  an  injunction,  by  bringing  to  bear  upon  it 
a  judicial  decision  of  another,  and  totally  different  tribunal,  not 
exercising,  cr  having  any  appellate  jurisdiction  over  the  court, 
whence  the  injunction  issued.  An  injunction,  emanating  from  a, 
competent  authority,  is  a  command  of  the  law;  and  the  citizen 


206          CASES  IN  THE  COURT  OF  APPEALS 

U  illiumson  vs.  Carnan. — 1829. 

is,  as  I  have  always  understood,  bound  to  yield  implicit  obedi- 
ence, until  the  restriction  has  been  removed  by  the  authority 
which  imposed  it.     But,  if  the  position  assumed  by  this  de- 
fendant be  correct,  then,  instead  of  obeying,  or  moving  to  dis- 
solve an  injunction,  a  party  may  avail  himself  of  various  modes 
of  getting  around,  or  under,  or  over  it,  without  being  chargeable 
with  the  slightest  contempt  of  the  law.     The  judgment  of  this 
court,  continuing  the  injunction,  was  founded  upon  the  proof  or 
admission  of  certain  facts,  after  hearing  both  parties,  as  to  the 
very  point,  whether  it  ought  to  be  continued  or  not.     But,  if  it 
could  be  indirectly  and  virtually  dissolved  by  a  judgment  of  the 
Levy  Court,  upon  a  different  case,  then  it  might  be  evaded  by 
one  party,  without  hearing  the  opposite  party  as  to  the  former, 
or  any  new  facts,  or  equity  which  he  might  be  able  to  show,  as 
a  most  solid  ground  for  its  further  continuance.     The  court, 
commanding  obedience  to  an  injunction,  might  thus  be  brought 
into  collision  with  another  court,  alleged  to  have  sanctioned, 
or,  as  this  defendant  has  said,  ratified  the  acts  in  disobedience  of 
it;  in  which  conflict  of  jurisdiction,  the  rights  of  persons  and  of 
property,  it  is  evident  must  suffer;  while  he  who  produced  the 
scuffle,  might  escape   with  the   spoil.     Surely,   such  princi- 
ples, which,  to  say  the  least  of  them,  lead  so  directly  to  disor- 
der and  confusion,  ought  not  to  be  tolerated  for  a  moment. 
It  was  upon  these  considerations,  that  L  passed  the  order  of 
the  23d  of  April  last,  from  which  the  defendant  has  appealed, 
and  given  bond  for  the  prosecution  of  his  appeal.     After  I  had 
in  open  court,  addressing  myself  to  the  argument  that  had  been 
urged  in  support  of  the  defendant's  petition  of  the  22d  of  April 
last,  declared,  that  the  order  of  the  Levy  Court  could  not  be 
allowed  to  operate  as  a  virtual  dissolution  of  the  injunction  ;  that 
it  could  only  be  dissolved  by  this  court  itself,  on  motion,  after 
hearing  the  parties;  and  that  until  so  dissolved  it  must  be  consi- 
dered as  in  full  force,  and  would  be  enforced  by  attachment; 
the  defendant,  on  the  same  22d  of  April,  filed  his  petition  pray- 
ing for  a  dissolution  of  it,  upon  which  the  court,  on  that  day, 
passed  the  order  appointing  the  1 3th  inst.  for  the  hearing  of  the 
motion  to  dissolve,  on  notice  being  given  as  directed.     On  the 


OF  MARYLAND.  207 


Williamson  vs.  Carnan.— 1829. 


5th  of  the  present  month,  the  plaintiffs  filed  their  petition,  with 
an  affidavit,  in  which  it  is  stated,  that  the  defendant  had  violated 
the  injunction  by  causing  obstructions  to  be  erected  across  the 
road,  which  he  had  not  removed  as  he  ought  to  have  done,  in 
obedience  to  the  order  of  the  23d  of  April  last;  whereupon 
they  prayed  that  an  attachment  might  be  issued  against  the  de- 
fendant, "to  answer  for  the  contempt  so  by  him  committed  and 
wilfully  persisted  in,  contrary  to  the  order  of  this  court;  and 
for  the  continuance  of  the  breach  of  the  said  injunction."  And 
they  further  prayed,  that  the  sheriff  of  Baltimore  County  might, 
by  a  special  order,  be  directed  to  remove  the  obstructions 
complained  of.  The  attachment  was  ordered  as  prayed;  upon 
which  the  defendant  was  brought  before  the  court  in  custody, 
on  the  13th  instant,  the  day  appointed  for  hearing  the  motion  to 
dissolve  the  injunction;  and  he  then  moved  to  quash  the  attach- 
ment; because  an  appeal  had  been  prayed  and  bond  given 
which  had  suspended  the  further  proceedings  of  this  court. 
On  the  next  day,  the  14th  instant,  the  defendant  filed  an  answer 
on  oath  to  the  alleged  contempt;  in  which  he  claims  a  dis- 
charge upon  two  grounds — First,  that  the  injunction  only 
operated  as  a  restraint  from  closing  the  road,  under  and  by  vir- 
tue of  the  authority  of  the  Levy  Court,  referred  to  in  the  bill; 
but  did  not  prohibit  him  from  shutting  it  up  under  any  other 
authority  than  the  one  mentioned;  and  secondly,  that  the  whole 
subject  matter  having  been  heretofore  brought  before  the  court, 
and  having  been  embraced  and  adjudicated  upon  by  the  order 
of  the  23d  of  April  last,  has  been  suspended  by  the  appeal 
from  that  order;  and  cannot,  therefore,  be  now  in  any  manner 
treated  as  a  contempt  of  this  coiirt. 

The  bill  upon  which  the  injunction  was  granted,  as  is  usual 
in  such  bills,  recites  the  colourable  or  pretended  legal  authority 
under  which  the  defendant  had  obstructed  the  specified  high- 
way, contrary  to  law;  and  avers,  that  the  pretended  legal 
authority  of  the  Levy  Court,  under  which  the  defendant  had 
assumed  the  right  to  act,  was  erroneous,  and  that  its  validity 
was  a  question  depending,  and  then  to  be  decided  upon  by  a 
superior  tribunal;  and  hence,  the  defendant  having  then  no 


CASES  IN  THE  COURT  OF  APPEALS 

Williamson  rs.  Carnun — 1829. 

authority  whatever  to  close  the  road,  it  thereupon  prays,  in 
general  terms,  that  he  may  be  altogether  enjoined  from  doing 
so.  There  is  absolutely  nothing  in  the  prayer  of  the  bill,  nor 
in  the  writ  of  injunction  itself,  which  limits  the  prohibition  to  a 
shutting  up  under  the  order  of  the  Levy  Court,  or  under  any 
other  particular  and  specified  authority  whatever.  Neither  the 
terms  of  the  prayer,  nor  of  the  writ  make  any  allusion  what- 
ever to  any  judicial  proceedings  of  any  kind  then  depending, 
or  thereafter  to  be  instituted.  The  restriction  imposed  upon 
the  defendant  is  as  general  and  comprehensive  as  it  could  well 
be  expressed.  The  clear  and  unequivocal  sense  of  which  is, 
that  the  road  shall  continue  to  be  considered  as  a  public  road  or 
highway,  which  the  defendant  shall  not  be  permitted  to  close 
until  he  shall  produce  and  show  to  this  court,  that  he  had  ob- 
tained a  legal  authority  to  do  so.  Therefore,  the  only  question 
now  is,  whether  the  acts  done  by  this  defendant  are  such  as  he 
was  prohibited  from  doing  by  the  injunction?  Those  acts  are 
the  erection  of  obstructions  upon  this  highway ;  now  those  are 
the  very  acts  which  this  injunction  does  most  positively  and 
distinctly  prohibit.  It  is  true,  that  if  the  injunction  had  prohi- 
bited acts^of  one  description  from  being  done,  and  the  party 
restrained  had  done  acts  of  another  description,  he  could  not, 
as  the  defendant  has  alleged,  be  charged  with  a  contempt. 
The  injunction  did  not  prohibit  him  or  any  other  person  from 
instituting  any  proceedings,  or  making  any  application  for  the 
purpose  of  obtaining  a  legal  authority  to  close  this  road;  and 
consequently  such  acts  of  the  defendant  cannot  be  regarded  as 
a  breach  of  the  injunction.  So,  too,  if  any  other  person  had 
obtained  an  authority  to  close  this  road,  such  person  might  have 
proceeded,  at  once,  to  shut  it  up;  but,  most  unquestionably,  this 
defendant  cannot  be  allowed  to  do  so,  upon  his  obtaining  an 
authority  to  close  it,  until  he  has  first  shown  that  authority  to 
this  court;  and  upon  motion  and  notice  to  the  opposite  party, 
according  to  the  established  practice,  obtained  a  dissolution  of 
that  general  and  unqualified  restraint  which  has  been  imposed 
upon  him  by  the  injunction.  This  first  cause  shown  by  the  de- 
fendant, for  his  discharge,  being  based  upon  an  assumed  posi- 


OF  MARYLAND.  209 


Williamson  vs.  Carnan.-— 1829. 


tion  not  warranted  by  the  proceedings,  is  therefore  deemed 
insufficient.  Indeed,  the  showing  itself  seems  tacitly  to  admit 
the  correctness  of  the  charge  of  contempt,  but  for  that  qualifi- 
cation of  the  injunction  which  it  has  assumed,  and  which  has 
in  fact,  no  real  existence. 

The  second  ground  upon  which  the  defendant  rests  his 
claim  to  be  discharged,  is,  that  this  whole  subject  has  been 
taken  from  this  court  to  the  Court  of  Appeals.  I  feel  no  dis- 
position to  meddle  in  any  way  whatever,  with  appeals  from  this 
court;  and  certainly  shall  not,  knowingly  or  intentionally,  check, 
control,  or  retard  them  in  any  manner  or  form,  either  directly 
or  indirectly.  And,  therefore,  until  otherwise  directed  by  the 
Court  of  Appeals,  I  admit,  that  the  appeal  has  entirely  sus- 
pended the  power  of  this  court  to  execute  the  order  of  the  23d 
of  April  last;  and  consequently,  that  the  defendant  cannot  now 
be  charged  here  with  any  contempt  for  a  disobedience  of  that 
order.  With  regard  to  the  prayer  of  the  plaintiffs'  petition  of 
the  5lh  of  May,  instant,  that  the  sheriff  may  be  ordered  to 
remove  the  obstructions  that  have  been  placed  in  this  road,  I 
deem  it  unnecessary,  upon  this  occasion,  to  express  any  opi- 
nion whatever.  But  the  injunction  has  not  yet  been  dissolved, 
and  there  has  been  no  appeal  or  other  proceeding  by  which  the 
enforcing  of  that  command  has  been  waived  or  suspended. 
The  petition  of  the  plaintiffs  of  the  5th  instant,  and  the  attach- 
ment awarded  thereon,  charges  the  defendant  with  contempt  by 
acts  "committed  and  wilfully  persisted  in  contrary  to'  the  order." 
And  also  by  "the  continuance  of  the  breach  of  said  injunction;" 
or,  in  other  words,  "in  disobeying  the  injunction  and  order 
heretofore  issued  in  this  cause."  The  language  of  the  writ  of 
attachment  is,  as  usual,  general;  but  so  far  as  it  is  calculated 
to  embrace  a  charge  of  disobeying  the  order  appealed  from,  it 
is  considered  as  improper.  The  defendant,  as  to  so  much, 
must  be  discharged,  and  that  writ,  so  far,  is  hereby  quashed. 

The  question,  therefore,  is  reduced  to  this,  whether  or  not 
the  appeal  from  the  order  of  the  23d  of  April  last,  has  suspended 
the  authority  of  this  court  to  enforce  obedience  to  the  injunc- 
tion? The  order  of  the  23d  of  April,  is  an  adjudication  upon 
VOL.  I.— 27. 


210         CASES  IN  THE  COURT  OF  APPEALS 

Williamson  rs.  Carnan. — 1829. 

the  subject  matter  then  submitted  to  the  court  for  its  decision, 
and  nothing  more.  The  defendant  had  been  brought  before  the 
court  upon  a  charge  of  contempt,  for  having  violated  its  injunc- 
tion; and  upon  that  charge  it  pronounced  that  judgment.  The 
court  had  the  power  to  have  committed  the  defendant  to  prison, 
and  to  have  imposed  a  fine  upon  him;  but,  considering  the  erro- 
neous advice  and  misapprehension  under  which  he  had  acted, 
it  imposed  the  lightest  punishment  it  could  select  in  application 
to  the  circumstances  and  nature  of  the  case — which  was,  that 
the  defendant  should  immediately  himself  be  at  the  expense  and 
trouble  of  removing  the  obstructions,  and  should  pay  the  costs 
of  the  attachment.  But  suppose  this  order  had  been  literally 
obeyed,  and  the  defendant  had  afterwards  erected  other  ob- 
structions on  this  road,  during  the  continuance  of  the  injunction, 
the  court,  on  application,  would  certainly  have  had  him  brought 
before  it,  and  punished  for  this  new  contempt;  or  if  the  defendant 
had  neither  obeyed,  nor  appealed  from  the  order,  then,  on  ap- 
plication, he  might  have  been  attached  and  punished,  as  well 
for  his  failure  to  remove  the  obstructions  as  ordered,  as  for  the 
continuance  of  them  in  disobedience  of  the  injunction.  Every 
continuance  of  a  nuisance,  or  trespass,  is  a  new  and  additional 
subject  of  complaint,  and  each  continuance  may  at  law  be 
made  the  subject  of  a  separate  prosecution  or  suit.  The  not 
removing  the  obstructions,  and  the  continuance  of  them  are 
clearly  two  distinct  subjects.  The  first  is  embraced  by  the 
order  which  has  been  suspended  by  the  appeal.  But  the  second 
can  only  be  considered  as  a  violation  of  the  injunction,  which 
has  been  in  no  way  dissolved  or  suspended;  because,  it  was 
that  alone,  and  not  the  order,  which  prohibited  the  continuance 
of  the  obstruction.  Every  continuance  of  the  obstructions  is  a 
new  and  distinct  ground  for  an  attachment.  All  contempt  for 
the  continuance  of  these  obstructions,  antecedent  to  the  order 
of  the  23d  of  April,  and  also  during  such  reasonable  time 
thereafter,  within  which  the  defendant  might  have  complied 
with  it,  are  embraced  under,  and  to  be  atoned  for  by  him, 
upon  the  terms  of  that  order.  But  the  specified  continuances 
of  them  since,  are  totally  distinct  subjects  of  complaint;  are  new 


OF  MARYLAND.  211 


Williamson  vs.  Carnan — 1829. 


violations  of  that  injunction,  which  is  admitted  to  be  in  full 
force;  and  are  now  to  be  treated  and  considered  as  if  nothing 
had  occurred  in  disobedience  of  it,  prior  to  that  time.  1  am, 
therefore,  of  opinion,  that  this  second  cause  upon  which  the 
defendant  rests  his  claim  to  be  discharged,  so  far  as  relates  to 
the  continuance  of  the  obstructions,  after  they  might  have  been 
removed  as  above  mentioned,  is  as  entirely  unfounded  as  the 
first. 

The  plaintiffs  have,  by  their  petition,  suggested,  and  also 
urged  in  argument,  that  the  defendant,  while  in  contempt,  is 
not  in  a  situation  to  move  for  a  dissolution  of  the  injunction; 
that  his  petition,  asking  to  have  a  day  appointed  to  hear  a 
motion  for  a  dissolution,  having  been  filed  before  he  had  cleared 
himself  of  the  contempt  wherewith  he  then  stood  charged,  was 
irregular,  and  that  the  motion  cannot  now  be  heard,  until  he  has 
cleared  himself  of  the  present  charges. 

It  is  certainly  true,  as  a  general  rule,  that  a  party  will  not 
be  permitted  to  come  in  and  claim  the  benefit  of  that  judicial 
authority,  which  he  has  contemned  and  set  at  naught.  He  must 
recognize  its  power  by  obedience,  and  clear  away  all  imputa- 
tions of  contempt,  before  he  can  be  allowed  to  "ask  from  it  any 
relief.  But  the  circumstances  of  this  case  are  evidently  very 
peculiar.  The  nature  and  extent  of  the  punishment  to  be  im- 
posed upon  the  defendant,  for  the  breach  of  the  injunction, 
with  which  he  now  stands  charged,  ought,  and  must  depend,  in 
some  degree,  upon  the  determination,  whether  the  injunction  is 
to  be  continued  or  not.  If  it  is  dissolved,  a  mere  corrective 
fine,  proportioned  to  the  disobedience  complained  of,  will  be 
sufficient.  If  it  is  continued,  then  he  should,  at  the  least,  as 
before,  be  ordered  to  remove  the  obstructions;  to  pay  all  the 
costs;  and  also  to  pay  a  fine,  or  stand  committed,  or  both; 
which  may  be  hereafter  so  increased  as  to  insure  obedience. 
It  therefore  occurred  to  me,  to  suggest  to  the  solicitors,  the 
propriety  of  now  hearing  the  motion  to  dissolve  the  injunction, 
in  order  that  I  might,  upon  the  attachment,  adopt  the  most  suita- 
ble mode  of  enforcing  obedience  to  the  injunction,  should  I 
come  to  the  conclusion  that  it  is  to  be  continued.  The  motion 


CASES  IN  THE  COURT  OF  APPEALS 

Williamson  vs.  Carnan. — 1829. 

for  a  dissolution,  was  accordingly  taken  up  and  argued;  and  I 
now  proceed  to  consider  and  decide  upon  it. 

On  adverting  to  the  proceedings  which  have  been  in  this 
case,  antecedent  to  the  13th  instant,  it  will  be  seen,  that  the 
defendant  admits  he  closed  the  road  subsequently  to  the  service 
of  the  injunction  upon  him ;  and  that  he  also  admits  he  has  not 
hitherto  obtained  from  this  court  a  dissolution  of  that  injunction. 
These  positions  are  unquestioned  and  unquestionable.  From 
these  premises,  I  conceive  it  to  be  the  duty  of  this  court,  to 
assume  and  act  upon  the  position,  that  this  road  is  now  open, 
and  has  not  been  as  yet  closed,  so  far  as  regards  this  defendant. 
For  if  the  defendant  were  admitted,  in  any  way,  to  avail  himself 
of  that  shutting  of  it  up,  which  has  been  in  fact  done  by  him- 
self, then  he  would  be  thus  suffered  to  take  advantage  of  his 
own  wrong,  which  can  never  be  allowed.  And  from  a  review 
of  this  case,  I  also  consider  it  proper,  as  regards  the  defendant, 
to  assume  and  act  upon  the  position,  that  he  cannot  claim  a 
dissolution  of  this  injunction,  unless,  at  the  time  of  asking  it, 
he  shows,  that  the  closing  of  the  road,  so  far  as  it  passes  over 
his  land,  has  been  legally  and  finally  authorized  by  some  com- 
petent authority;  and  that  the  question,  whether  it  should  be 
closed  or  not,  is  not,  at  the  time  of  hearing  the  motion  for  a 
dissolution,  depending  before  any  legal  and  competent  tribunal. 

The  plaintiffs,  by  their  petition  filed  the  13th  instant,  set 
forth  and  show  several  causes  why  the  injunction  should  not 
now  be  dissolved  as  prayed ;  and,  among  others,  they  show, 
that  proceedings  have  been  instituted,  and  are  now  depending 
before  the  Commissioners  of  Baltimore  county,  a  legal  and  com- 
petent authority,  for  having  this  same  highway,  called  the  Gar- 
rison Forest  Road,  opened,  and  kept  open,  as  it  has  heretofore 
been.  As  I  have  observed  upon  a  former  occasion,  in  regard 
to  the  Levy  Court,  whether  the  proceedings  which  have  been 
thus  instituted  before  the  commissioners,  are  as  correct  and 
regular  as  they  ought  to  be,  is  not  for  this  court  to  determine. 
It  is  enough,  that  it  satisfactorily  appears,  now,  upon  the  hearing 
of  this  motion,  that  the  defendant  has  not  yet  obtained  a  final 
and  conclusive  legal  authority  to  close  this  road;  and,  that  he 


OF  MARYLAND.  213 


Williamson  vs.  Carnan. — 1829. 


has,  as  yet,  no  right  to  shut  it  up;  because  the  right  to  do  so, 
is,  at  this  time,  depending  before,  and  to  be  determined  by  a 
legal  and  competent  tribunal.  And,  therefore,  until  that  pro- 
ceeding has  been  finally  terminated;  or  rather,  until  the  defen- 
dant can  show  to  this  court,  some  good  and  sufficient  legal 
authority  for  closing  it,  this  injunction,  by  which  "it  has  been  in 
point  of  law,  up  to  this  time,  kept  open,  so  far  as  it  passes  over 
his  land,  must  be  continued. 

Ordered,  that  the  injunction  heretofore  granted  in  this  case, 
be,  and  the  same  is  hereby  continued  until  final  hearing  in,  or 
further  order  of,  this  court. 

Ordered  also,  that  the  defendant  do  forthwith,  and  with  the 
least  possible  delay,  entirely  remove  and  take  away  all  fences, 
&c.  and  all  manner  of  obstructions,  which,  having  been  hereto- 
fore by  him,  his  agents,  or  servants,  placed  or  put  in  or  upon  the 
road  in  the  proceedings  mentioned,  contrary  to  the  inhibition  of 
the  said  injunction,  he  has  suffered  to  remain  and  continue  in  and 
upon  the  said  road  in  disobedience  of  the  said  injunction,  after 
he  might  have  removed  the  same  as  directed  by  the  order  of 
this  court  of  the  23d  of  April  last. 

Ordered  also,  that  the  defendant  for  his  contempt  in  not 
obeying  the  injunction  of  this  court,  by  continuing  the  said  ob- 
structions in  the  said  road  as  aforesaid,  after  the  time  when  he 
might  have  removed  the  same  as  directed  by  the  order  of  this 
court  of  the  23d  of  April  last,  pay  a  fine  of  fifty  dollars,  and 
all  the  costs  of  the  last  mentioned  attachment,  and  that  he  stand 
committed  until  the  said  fine  and  costs  are  paid. 

From  which  last  mentioned /order,  and  also  from  the  order 
of  the  County  Court  directing  the  injunction  to  issue  in  this 
cause,  (12th  of  May,  1826,)  and  from  the  order  of  the  Chan- 
cellor of  the  4th  of  January,  1828,  directing  an  attachment  to 
be  issued  against  the  defendant,  and  also  from  the  order  of  the 
court  of  the  9th  of  April,  1828,  directing  another  attachment 
to  issue  against  the  defendant,  he  also  appealed  to  this  court. 
And,  upon  the  defendants  presenting  to  the  Chancellor  the  bond 
which  he  had  entered  into  with  sureties  for  prosecuting  the 
said  appeal,  the  Chancellor  on  the  21st  of  May,  1828,  passed 
the  following  order — 


214          CASES  IN  THE  COURT  OF  APPEALS 

Williamson  w.  Carnan. — 1329. 

Ordered,  that  the  foregoing  bond  this  day  filed,  be,  and  the 
same  is  hereby  approved.  And,  in  reply  to  the  motion  sub- 
mitted, the  Chancellor  declares  it  to  be  his  opinion,  that  the 
said  bond  having  been  filed  and  approved  before  the  actual 
payment  of  the  fine  and  costs,  as  commanded  by  the  order 
passed  yesterday,  which  has  been  appealed  from,  and  before 
the  defendant  had  been  actually  committed  to  the  custody  of 
the  messenger,  to  be  by  him  closely  confined  in  gaol,  operates 
as  a  supersedeas  of  all  further  proceedings  for  that  or  any  other 
purpose,  in  relation  to  the  matters  appealed  from. 

The  said  appeals  being  allowed,  a  transcript  of  the  record 
was  transmitted  to  this  court. 

At  June  term,  1828,  on  a  motion  made  by  the  appellees 
to  dismiss  these  appeals,  it  came  on  and  was  argued  before 
BUCHANAN,  Ch.  J.  and  EARLE,  MARTIN  and  ARCHER,  J. 

Gwynn,  for  the  appellees,  in  support  of  the  motion,  referred 
to  Snowden  vs.  Dorset/,  6.  Harr.  Sf  Johns.  115,  and  Thompson  vs. 
McKim,  Ibid.  302.  He  insisted  that  the  appeal  from  the  order 
of  the  12th  of  May,  1826,  was  too  late,  and  cited  Strike  vs. 
McDonald,  2  Harr.  fy  Gill,  191.  He  also  insisted  that  the 
order  of  the  20th  of  May,  1828,  refusing  to  dissolve  the  in- 
junction, was  a  mere  interlocutory  order,  whereby  no  rights 
were  finally  settled  between  the  parties,  and  from  which  no 
appeal  would  He. 

Magruder,  against  the  motion,  referred  to  1  Madd.  Ch.  1 28. 
Eden  on  Inj.  162,  163,  167.  Co.  Litt.  56.  a,  and  the  act  of  Ass. 
of  1794,  ch.  52  sec.  14.  He  urged  that  there  could  be  no  breach 
of  the  injunction,  until  the  decision  of  Baltimore  County  Court, 
under  the  certiorari.  If  the  appellees  had  applied  for  and  ob- 
tained a  perpetual  injunction,  then  the  appellant  might  apply  to 
the  Levy  Court,  and  obtain  another  order  to  close  the  road. 
Denton  vs.  Jackson,  2  Johns.  Ch.  Rep.  321.  On  an  injunction 
to  stay  wraste,  pending  an  action  of  ejectment  or  trespass,  it  will 
be  dissolved,  on  motion,  unless  it  is  shown  that  the  complainant 
had  succeeded  at  law.  Here,  on  the  decision  made  by  Balti- 


OF  MARYLAND.  215 


Williamson  vs.  Carnan — 1829. 


more  County  Court,  the  injunction  was  at  an  end — it  had  per- 
formed its  office.  The  proceedings  of  the  Levy  Court  being 
annulled,  the  appellant  had  no  right  to  shut  up  the  road;  but  he 
applied  again  to  that  court,  and  another  order  for  shutting  the 
road  up  was  granted  to  him; — and  he  then  did  shut  up  the  road. 
After  which,  it  appears  that  the  appellees  applied  to  the  Com- 
missioners of  the  county,  (they  being  substituted  in  the  place  of 
the  Levy  Court,)  to  open  a  new  road  where  the  old  road  had 
run.  He  contended  that  the  orders  of  the  Chancellor,  directing 
the  appellant  to  remove  obstructions,  &c.  from  the  road  in 
question,  affected  his  rights  ;  and  that  his  rights  were  as  much 
affected  thereby,  as  in  Thompson  vs.  McKim.  If  he  were  to 
remove  his  fences,  &c.  from  the  road,  and  it  should  be  finally 
decided  that  they  ought  not  to  have  been  removed,  how  could 
he  then  be  compensated  for  the  injury  he  had  sustained. 

Taney,  (Attorney  General,)  also,  against  the  motion  in  his 
argument,  referred  to  Attorney  General  vs.  Utica  Insurance 
Company,  2  Johns.  Ch.  Rep.  378.  Edenonlnj.  157,  162, 163. 

Gtci/nn,  in  reply,  cited  Eden  on  Inj.  55,  56, 162,  163.  He 
said  that  the  court  could  not  compel  the  party  to  resort  to  a 
new  injunction,  where  the  reasons  for  a  former  injunction  had 
ceased  to  exist,  and  new  reasons  had  arisen  which  would  justify 
an  injunction. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  court.  The 
order  of  the  Commissioners  of  Baltimore  County,  on  the  13th 
of  December,  1827,  confirming  the  report  of  the  commissioners 
appointed  by  the  Levy  Court  of  that  county,  and  directing  and 
authorising  the  old  road  to  be  shut  up,  placed  the  premises  over 
which  it  formerly  run,  under  the  controul  of  the  appellant  to 
whom  the  land  belonged,  and  gave  him  the  same  right  of  user 
of  the  land  of  that  road,  that  he  had  of  the  rest  of  his  estate. 
And  we  think  that  the  subsequent  order  of  the  Court  of  Chan- 
cery, does  so  materially  affect  the  right  and  interests  of  the  ap- 
pellant as  to  bring  the  case  within  the  principle  of  Thompson 


216         CASES  IN  THE  COURT  OF  APPEALS 

Tiernan  vs.  Poor.— et  MX.  ti.  al.— 1829. 

vs.  JlfcKim,  heretofore  decided  by  this  court,  and  form  a  fit 
subject  of  appeal. 

The  motion,  therefore,  to  dismiss  these  appeals,  is  overruled. 

MOTION  OVERRULED. 

EARLE,  J.  dissented. 


TIERNAN  vs.  POOR,  et  ux.  et  al. — December,  1829. 

Where  the  facts  charged  in  a  bill  were  all  admitted  to  be  true  by  the  plead- 
ings, and  there  was  no  replication,  but  the  parties  agreed  that  the  Chan- 
cellor might  take  the  papers  and  decide  the  cause;  by  such  agreement  the 
cause  is. set  down  for  hearing,  and  whether  the  proceedings  of  the  defend- 
ant bo  regarded  as  a  plea,  or  as  an  answer,  the  question  submitted,  is  on 
their  legal  sufficiency  to  bar  the  plaintiff's  claim. 

When  any  instrument  of  writing  is  designed  to  operate  as  a  transfer  of 
property,  and  proper  and  apt  terms  are  used,  whereby  the  meaning  of  the 
parties  can  be  clearly  ascertained,  if  some  circumstances  are  omitted  to 
give  it  legal  validity,  which  deprive  it  of  its  intended,  specific  operation,  a 
Court  of  Equity  will  set  it  up  as  a  contract,  or  as  evidence  of  a  contract; 
and  when  the  rights  of  innocent  third  parties  would  not  thereby  be 
affected,  will,  as  between  the  parties  to  such  instrument,  carry  it  into 
specific  execution;  provided  it  be  founded  upon  a  valuable  consideration. 

P  and  his  wife,  in  consideration  that  T  would  give  up  a  lien  which  he  held 
upon  P's  personal  property,  agreed  to  execute  a  mortgage  of  certain  real 
property,  which,  by  a  post-nuptial  settlement,  had  been  conveyed  to 
trustees  for  the  sole  use  of  the  wife,  with  power  to  her  to  "sell,  convey  and 
dispose  of  the  same,  absolutely  in  such  manner  as  she  might  think  proper 
to  direct,  without  the  concurrence  of  her  husband,  and  from  and  after  her 
decease,  such  parts  of  the  property  as  should  be  left  undisposed  of,  by 
her  deed  or  contract,"  was  conveyed  in  trust  to  her  children.  In  pursuance 
of  such  agreement,  T  gave  up  his  lien,  and  P  and  his  wife  executed  a  deed 
to  T,  for  some  of  the  trust  property.  The  deed  was  in  the  usual  form  of  a 
mortgage,  except  that  the  wife  was  not  examined  apart  from  her  husband, 
by  the  justice  of  the  peace  who  took  her  acknowledgment,  and  according 
to  the  Acts  of  Assembly  passed  in  relation  to  deeds  executed  by  femes 
covert  grantors.  Upon  a  bill  filed  by  Tr  praying  a  sale  of  the  mortgaged 
premises,  the  court  held,  that  whether  the  instrument  of  writing  which 
forms  the  basis  of  this  call,  for  the  interposition  of  a  Court  of  Equity,  be 
in  fact  a  mortgage,  in  its  legal  and  technical  sense,  in  consequence  of  its 
not  having  been  acknowledged  in  the  manner  which  the  acts  of  Assembly 
require,  it  was  not  necessary  to  determine;  but  it  was  clearly  intended 


OF  MARYLAND.  317 


Tiernan  vs.  Poor,  et  ux.  et  al — 1829. 


to  be  a  mortgage,  and  within  the  limits  of  the  wife's  disposing  power;  and 
therefore  decreed  the  property  mentioned  therein  to  be  sold. 
The  title  to  the  assistance  of  a  court  must  be  exposed  by  the  pleadings;  but 
the  style  and  character  of  pleading  in  equity,  has  always  been  of  a  more 
liberal  cast,  than  that  of  other  courts;  as  mispleading  in  matter  of  form 
there,  has  never  been  held  to  prejudice  a  party,  provided  the  case  made  is 
right  in  substance,  and  supported  by  proper  evidence. 

APPEAL  from  a  decree  of  the  Court  of  Chancery,  dismissing 
a  bill  of  the  complainant,  (now  appellant.)  The  original  bill, 
filed  on  the  21st  of  February,  1822,  stated  that  Dudley  Poor, 
(one  of  the  defendants,)  being  indebted  to  the  complainant  in  the 
sum  of  $600,  and  desirous  of  securing  the  payment  thereof,  and 
the  interest,  in  consideration  thereof  the  said  Poof,  and  Deborah 
his  wife,  (another  of  the  defendants,)  on  the  28th  of  March, 
1820,  executed  to  the  complainant  a  deed  of  mortgage,  by 
which  they  conveyed  to  the  complainant  a  lot  of  ground  in  the 
city  of  Baltimore,  on  the  north  side  of  Market  street,  next  to 
the  corner  of  Gay  street,  No.  50,  with  a  proviso,  that  upon  pay- 
ment of  the  said  sum  of  money,  and  interest,  on  or  before  the 
1st  of  July,  next  ensuing  the  date  of  the  said  deed  of  mortgage, 
the  same  should  be  void;  which  said  deed  of  mortgage  was  aver- 
red to  have  been  duly  acknowledged  and  recorded  on  the  27th 
of  September,  1820.  That  although  the  said  1st  day  of  July 
next  ensuing  the  date  of  the  said  deed  of  mortgage,  and  the  pe- 
riod therein  mentioned  for  the  payment  of  the  said  $600,  with 
the  interest  due  thereon,  has  long  since  passed  by  ;  yet  the  said 
D.  Poor,  and  Deborah,  his  wife,  have  neglected  to  pay  the  said 
sum  of  money,  &c.  Prayer  for  a  sale  of  the  mortgaged  premi- 
ses, &c.  and  for  further  relief.  / 

The  *!eed  of  mortgage  exhibited  by  the  complainant,  as  stated 
in  his  bill,  was  dated  the  28th  of  March,  1820,  executed  by  D. 
Poor,  and  Deborah,  his  wife,  to  the  complainant,  whereby,  in 
consideration  of  the  sum  of  $600,  to  them  paid,  they  conveyed 
the  lot  of  ground  mentioned  in  the  bill,  with  the  proviso  therein 
stated,  with  a  covenant  for  further  and  other  acts,  deeds,  assur- 
ances and  conveyances.  The  deed  of  mortgage  was  signed 
and  sealed  by  the  said  Poor  and  wife,  and  acknowledged  by 

VOL.  I.— 28. 


218          CASES  IN  THE  COURT  OF  APPEALS 

Tiernan  vs.  Poor,  et  ux.  et  al. — 1829. 

them  before  two  justices  of  the  peace,  &c.  on  the  day  of  its 
date.  But  there  did  not  appear  to  have  been  any  private  and 
separate  examination  of  the  wife,  apart  from  her  husband,  as 
required  by  the  acts  of  Assembly,  to  conveyances,  executed  by 
femes  covert,  conveying  their  real  estates,  or  relinquishing  their 
rights  of  dower.  The  deed  was  recorded  on  the  27th  of  Sep- 
tember, 1820. 

The  answer  of  Poor  and  wife,  admitted  the  execution  of  the 
deed  of  mortgage;  but  by  way  of  pka  and  answer  to  the  bill, 
they  stated  that  the  defendant,  Deborah,  is  one  of  the  heirs  at 
law,  representatives  and  devisees  of  John  O'Donnell,  deceased, 
and  as  such,  was  entitled  to  a  large  real  and  personal  estate, 
as  her  distributive  share  of  the  said  estate.  That  the  said  es- 
tate was  distributed  and  divided  among  the  legal  representa- 
tives of  the  said  O'Donnell.  They  further  stated,  that  after 
the  said  estate  was  so  divided  and  allotted,  they,  the  defendants, 
by  a  deed  duly  executed,  acknowledged  and  recorded,  bearing 
date  on  the  24th  of  August,  1816,  did  convey,  &c.  unto  Colum- 
bus CPDonnell  and  John  H.  Poor,  all  their  estate,  and  interest  in 
the  said  share  of  the  estate  of  the  said  John  O'Donnell,  in  trust 
for  the  sole  and  separate  use,  benefit  and  behoof  of  the  said 
Deborah,  for  and  during  the  term  of  her  natural  life,  so  that  she 
be  suffered  and  permitted,  peaceably  and  quietly,  to  use,  &c. 
the  said  real  estate,  property  and  premises  thereby  conveyed, 
and  the  rents,  &c.  thereof,  and  of  every  part  thereof  to  receive, 
take  and  apply  to  her  separate  use,  without  being  subject  to  the 
disposition,  &.c.  of  the  said  Dudley  Poor,  or  of  any  future  hus- 
band of  the  said  Deborah,  and  in  no  wise  liable  or  answerable 
for  the  payment  or  fulfilment  of  his  or  their  debts,  contracts  or 
engagements;  and  so  as  that  the  same  estate  and  property  thereby 
granted  and  conveyed,  and  every,  or  any  part  or  parcel  thereof 
might  be  sold,  conveyed  and  disposed  of  absolutely,  by  the 
said  Deborah,  in  such  manner  as  she  may  think  proper  or  direct; 
and  that  without  the  concurrence  of  her  present,  or  any  future 
husband.  And  from  and  after  the  decease  of  the  said  Deboraht 
then  as  to  the  whole  of  the  same  estate,  property  and  premises 
thereby  granted  and  conveyed,  or  such  parts  or  part  thereof, 


OF  MARYLAND.  219 


Tiernan  vs.  Poor,  et  ux.  et^al. — 1829. 


as  may  remain  undisposed  of,  by  deed  or  contract,  in  trust  for 
all  the  children  of  the  said  Deborah,  and  their  heirs,  as  tenants 
in  common,  equally.  But  in  case  the  said  Deborah  shall  depart 
this  life,  without  leaving  a  child,  or  a  descendant  of  a  child, 
living  at  the  time  of  her  death,  then,  in  trust  for  the  use,  and 
behoof  of  such  person  or  persons,  or  for  such  uses  and  purposes 
as  the  said  Deborah,  (her  coverture  notwithstanding,  or  whether 
sole  or  covert,)  shall  or  may,  by  any  instrument  of  writing  in 
the  nature  of,  or  purporting  to  be  her  last  will  and  testament, 
direct,  limit  and  appoint;  and  in  default  of  such  limitation  or 
appointment,  then  for  the  use,  benefit  and  behoof  of  the  right 
heirs  of  the  said  Deborah,  and  their  assigns,  forever.  And  upon 
this  trust,  nevertheless,  and  with  full  power  to  the  said  Colum- 
bus O^Donnell  and  John  H.  Poor,  and  the  survivor  of  them  and 
his  heirs,  with  the  consent,  and  by  the  direction  of  the  said 
Deborah,  testified  in  due  form,  but  not  otherwise,  from  time  to 
time,  at  any  time  thereafter,  to  make  any  lease  or  leases,  demis- 
es or  grants  of  the  estate  and  property  thereby  conveyed,  or  of 
any  part  thereof,  with  the  appurtenances,  for  any  term  or  terms 
whatever,  renewable  or  not  renewable,  so  as  upon  every  such 
lease  or  leases,  there  be  reserved  to  continue  payable  to  the 
said  Columbus  O'Donnell  and  J.  H,  Poor,  and  the  survivor  of 
them,  and  his  heirs,  during  the  respective  lease  or  leases,  the 
best  rents  that  can  be  obtained  for  the  same;  and  so  as  in  every 
such  lease  or  leases,  there  be  contained  reasonable  and  usual 
covenants,  in  like  cases;  and  also  a  proviso  or  clause  of  re-en- 
try for  non  payment  of  the  rent  or  rents  thereby  reserved.  And 
these  defendants  further  say,  that  the  real  estate  specified  and 
mentioned  in  the  said  mortgage  was  included  in  the  said  deed 
to  the  said  C.  CPDonnell  and  J.  H.  Poor,  and  was  a  part  thereof. 
And  these  defendants,  by  way  of  plea,  and  in  bar  of  the  com- 
plainants right  to  recover  in  the  said  bill,  say  that  they  are  ad- 
vised they  had  no  legal  right  to  make  the  ssid  deed  of  mortgage, 
and  that  no  legal  interest  or  title  whatever  \vas  thereby  convey- 
ed to  the  complainant — the  legal  title  being  outstanding  in  the 
said  trustees,  C.  O^Donnell  and  J.  H.  Poor — and  moreover, 
that  the  said  deed  of  mortgage  is  defectively  executed;  and  even 


CASES  IN  THE  COURT  OF  APPEALS 

Tiernan  rs.  Poor,  et  we.  tt  al. — 1829. 

if  a  legal  or  equitable  title  existed,  in  these  defendants,  that  the 
said  deed  is  wholly  defective  in  its  execution,  and  agreeably  to 
the  laws  of  this  state  conveyed  no  title,  legal  or  equitable,  to 
the  complainant.  And  these  defendants,  therefore,  pray  hence 
to  be  dismissed,  with  their  costs,  &c. 

The  deed  of  trust  exhibited  by  the  defendants,  was  dated  the 
24th  of  August,  1816,  executed  by  them  to  C.  CPDonndl  and 
J.  II.  Poor,  conveying  the  real  estate,  &c.  as  mentioned  in  the 
above  answer  and  plea,  and  in  the  manner,  and  upon  the  trusts 
as  therein  stated.  It  was  acknowledged  by  the  defendants  on 
the  day  of  its  date,  and  the  wife  was  privately  examined  apart 
from  and  out  of  the  hearing  of  her  husband,  &c.  and  was  re- 
corded on  the  21st  of  September,  1816. 

The  complainant  having  obtained  leave  for  that  purpose, 
amended  his  bill  by  making  C.  O'Donnell  and  J.  H.  Poor  par- 
ties defendants. 

The  answer  of  D.  Poor  and  Deborah  his  wife,  to  the  amend- 
ed bill,  admitted  C.  O'Donnell  and  J.  H.  Poor  mentioned 
therein,  as  trustees  of  the  said  Deborah  in  the  deed  of  trust, 
are  the  trustees  appointed  by  the  same  as  therein  alleged. 

The  complainant  having  again  obtained  leave  for  that  pur- 
pose, further  amended  his  bill,  by  stating  that  after  the  execu- 
tion of  the  deed  of  trust,  and  before  the  execution  of  the  mort- 
gage, D.  Poor  had  rented  from  the  complainant  a  dwelling 
house  in  the  city  of  Baltimore,  which  house  D.  Poor  and  his 
family  had  occupied  for  a  considerable  period.  That  shortly 
before  the  execution  of  the  mortgage,  there  was  due  to  the 
complainant  from  D.  Poor,  the  sum  of  $600,  as  rent  in  arrear 
for  the  said  house,  and  for  which  the  complainant  had  levied  a 
distress  on  the  goods  and  chattels  of  the  said  D.  Poor,  then  in  the 
said  dwelling  house,  of  sufficient  value  to  secure  the  said  rent; 
and,  at  the  time  of  the  agreement  hereinafter  mentioned,  had 
and  held  the  said  distress  in  full  force  and  effect.  That  on  the 
28th  of  March,  1820,  the  complainant  being  possessed  of  the 
said  security  for  his  rent  aforesaid,  the  said  D.  Poor  and  Debo- 
rah his  wife,  agreed  with  him,  that  they  would  execute  the 
mortgage  filed  with  the  original  bill  in  this  cause,  for  the  pur- 


OF  MARYLAND. 


Tiernan  vs.  Poor,  et  MX.  et  al. — 1829. 


pose  of  securing  the  payment  of  the  aforesaid  rent,  in  consi- 
deration that  the  complainant  would  relinquish  his  said  distress, 
and  give  up  the  said  goods  and  chattels,  levied  on  as  aforesaid. 
The  complainant  alleges  that  he  complied  with  the  said  agree- 
ment on  his  part,  and  the  said  D.  Poor  and  Deborah  his  wife,  in 
pursuance  of  the  said  agreement,  executed  the  said  mortgage,  and 
the  said  goods  were  given  up  to  the  said  D.  Poor,  and  the  said 
mortgage  was  duly  recorded  according  to  law.  That  the  said 
mortgaged  property  constituted  a  part  of  the  property  men- 
tioned in  the  said  deed  of  trust;  and  that  the  complainants  claim 
remains  unpaid.  Prayer,  that  the  mortgaged  premises  may  be 
decreed  to  be  sold,  &c.  and  for  other  relief,  &c. 

To  this  amended  bill,  all  the  defendants  answered,  admitting 
the  facts  set  forth  in  the  said  bill  of  complaint,  to  be  true  as 
stated;  yet  they  allege  and  contend  that  the  complainant  is  not 
entitled  to  relief;  and  therefore  pray  that  the  said  bill  may  be 
dismissed  with  costs,  &c. 

Agreement.  "  It  is  agreed  in  this  case  that  the  Chancellor 
may  take  the  papers  and  give  a  final  decree — the  counsel  for 
both  parties  considering  that  the  questions  of  law  connected 
with  it,  having  been  fully  discussed  before  his  honor,  the  Chan- 
cellor, in  a  late  case  against  the  same  defendants,  that  it  is  un- 
necessary to  discuss  them  again."  Signed  by  the  counsel. 

BLAND,  Chancellor,  (September  term,  1826.)  From  the 
whole  proceedings  the  case  appears  to  be  substantially  no  more 
than  this.  The  plaintiff,  to  secure  a  debt  due  to  him,  obtained 
a  mortgage  of  certain  property  from  Dudley  Poor  and  wife, 
who  by  their  plea  allege,  that  prior  thereto  the  mortgaged  pro- 
perty had  been  conveyed  to  Columbus  O'Donnell  and  John  H. 
Poor,  in  trust  for  certain  uses  as  in  that  deed  mentioned,  and 
therefore,  that  Dudley  Poor  and  wife  had  no  right  or  power  in 
equity  to  make  and  execute  the  mortgage  relied  on  in  the  bill. 
The  plaintiff  has  admitted  the  sufficiency  of  the  plea  by  reply- 
ing to  it.  And  the  truth  of  the  facts  therein  stated,  which  alone 
has  been  put  in  issue,  is  clearly  established  by  the  proceedings 
in  the  cause.  The  plea  covers  the  whole  substance  and  merits 


•>•>•>          CASES  IN  THE  COURT  OF  APPEALS 

Tiernan  vs.  Poor,  el  ux.  et  al.— 1829. 

of  the  plaintiffs  case,  and  consequently,  being  fully  sustained  in 
la\v  and  fact,  puts  an  end  to  it  altogether. — DECREED,  that  the 
bill  of  complaint  of  the  complainant  be  dismissed  with  costs. 
From  which  decree  the  complainant  appealed  to  this  court, 
where  the  following  agreement  was  entered  into  by  the  counsel 
of  the  parties. — "  In  this  case  it  is  agreed  that  the  plea  to  the 
original  bill  shall  be  considered  as  a  plea  to  the  amended  bills — 
the  appellant  reserving  all  objection  to  the  plea  itself,  both  in 
form  and  substance,  and  not  admitting  it  to  be  a  plea  at  all." 

The  cause  was  argued  before  EARLE,  ARCHER  and  DOR- 
SEY,  J. 

Gill  for  the  appellant  contended, — 1.  That  the  deed  of  trust 
from  D.  Poor  and  wife  to  O'Donnell  and  /.  H.  Poor,  conveyed 
to  Mrs.  Poor  an  equitable  estate  for  her  sole  use,  independent 
of  her  husband ;  which  estate  she  had  a  right  to  assign  abso- 
lutely or  mortgage  at  her  discretion,  by  the  terms  of  the  trust 
deed. 

2.  That  having  such  right,  it  is  bound  by  her  contract  set 
forth  in  the  bill;  and  the  Chancellor  erred  in  not  decreeing  a 
sale  of  it  to  satisfy  her  contract. 

3.  That  if  there  be  any  error  in  the  mortgage  from  Poor  and 
wife  to  the  complainant,  then  upon  the  original  contract  inde- 
pendently and  without  that  mortgage,  the  complainant  having 
fulfilled  his  part  of  the  contract,  and  Poor  and  wife  having 
received  a  valuable  consideration  from  him,  he  is  entitled  to  a 
sale  of  the  property  described  in  the  mortgage,  to  satisfy  his 
claim. 

4.  That  this  cause  is  substantially  before  this  court,  as  it  was 
before  the  Chancellor,  upon  general  demurrer — the  answer  to 
the  amended  bill  being  in  effect  a  demurrer. 

5.  That  there  was  no  plea  filed  by  the  defendants  in  this 
cause. 

6.  That  if  there  was  a  plea,  it  was  abandoned  or  overruled 
by  the  last  amended  answer;  and  if  not,  the  agreement  to  sub- 
mit the  case,  was  in  effect,  setting  the  plea  down  for  hearing. 


OF  MARYLAND.  2-23 


Tiernanrs.  Poor,  etitx.  etal. — 1829. 


On  the  first  and  second  points,  he  cited  Price  fy  Nisbet  vs. 
Bighorn's  Ex'rs,  7  Harr.  fy  Johns.  296,  318. 

On  the  third  point,  he  cited  Williams^  Ex^rs.  vs.  The  Mayor 
Sfc.  of  Jlnnapolis,  6  Harr.  &f  Johns.  533.  Hunt  vs.  Rousma- 
niere's  Mm'rs,  1  Peters's  S.  C.  Rep.  13. 

On  the  fourth  point.  This  case  is  to  be  considered  as  if  the 
defendants  had  demurred.  The  bill  as  last  amended  is  admit- 
ted in  every  particular.  It  is  not  in  any  respect  contradicted 
by  the  plea  filed  to  the  original  bill,  and  the  last  amended 
answer  in  terms,  admits  the  amended  bill;  and  it  is  this  bill 
which  discloses  the  plaintiffs  claim.  There  is  no  dispute  about, 
no  denial  of  the  facts.  There  was  nothing  for  a  replication  to 
act  upon.  Nothing  then  was  left  for  the  Chancellor  to  decide, 
but  the  law  of  the  case  arising  upon  the  bill.  In  effect,  there- 
fore, it  is  as  if  a  general  demurrer  had  been  filed,  and  exclusive- 
ly relied  upon.  The  law  of  this  case  in  every  particular  is  set- 
tled by  this  court  in  the  case  in  7  Harr.  fy  Johns,  before  referred 
to.  The  law  of  this  case  is  its  conscience  and  honesty,  arising 
from  the  fact,  that  the  plaintiff  at  the  request  of  the  defendants, 
Poor  <^  Wife,  gave  up  to  them  a  valuable  property,  for  which 
he  now  asks  payment. 

On  the  fifth  point.  Is  there  any  plea  in  the  case  ?  The 
Chancellor  says  there  was  a  plea  to  which  the  complainant 
replied.  If  there  was  a  plea  to  the  original  bill,  it  is  admitted 
there  is  one  to  the  amended  bills.  But  it  is  denied  that  it  was 
a  plea  at  all.  It  is  an  answer,  and  not  a  plea.  It  is  wholly 
deficient  in  the  form  and  substance  of  a  plea.  Mitf.  Plead, 
(ed.  1812,)  235,  238,  240.  James's  Eq.  Pkad.  339,  340. 
The  defendant  must  plead  to  the  whole  of  the  bill,  or  a  part, 
and  then  answer  as  to  the  residue.  The  plea  and  answer  must 
be  distinct,  and  cannot  be  mixed  together.  Ringgold  vs.  Ring- 
gold,  I  Harr.  Sf  Gill,  12.  Here  it  is  impossible  to  discriminate 
between  what  facts  are  relied  on  to  constitute  a  plea,  and  what, 
to  constitute  an  answer. 

On  the  sixth  point.  If  it  is  a  plea  and  not  an  answer,  it  never 
was  replied  to.  There  was  no  general  replication.  The  case 
was  set  down  for  hearing  under  the  agreement  entered  into  for 


*>  I         CASES  IN  THE  COURT  OF  APPEALS 

Tieraan  tw.  Poor,  et  ux.  et  al — 1899. 

that  purpose.  The  filing  the  amended  answer,  abandoned  the 
plea.  What  is  the  effect  of  a  plea,  and  an  answer  admitting 
the  facts  in  the  amended  bill?  There  could  be  no  occasion  for 
the  plea  to  the  amended  bill,  as  it  contains  all  the  facts  stated 
in  the  supposed  plea.  Mitf.  Plea,  254.  Chase  vs.  McDonald  $• 
Ridgely,  7  Harr.  #  Johns.  178,  197,  198. 

Winchester  for  the  appellees.   This  is  an  attempt  to  make  the 
wife's  separate  estate,  answerable  for  her  husbands  debt.     The 
trust  is  express  that  the  property  should  not  be  disposed  of  to 
pay  the  debts  of  the  husband.     The  mortgage  to  the  complain- 
ant was  acknowledged  by  D.  Poor  and  wife,  but  she  was  not 
privately  examined,  &c.  as  required  by  law.     Was  the  property 
at  the  time  of  the  mortgage,  liable  to  the  mortgage,  or  the 
contract  growing  out  of  it?     The  bill  does  not  speak  of  the 
mortgage  as  a  contract  growing  out  of,  or  within  the  deed  of 
trust,  under  the  power  reserved  to  the  wife  to  make  a  contract. 
The  bill  is  to  foreclose  a  mortgage,  and  for  no  other  purpose. 
Is  it  a  mortgage  sufficient  to  pass  the  estate  in  the  property  of 
a  feme  covert,  admitting  that  it  was  not  trust  property  ?     She 
cannot  be  considered  or  regarded  as  a  feme  sole,  capable  of 
making  her  separate  estate  answerable  for  the  debts  of  her 
husband.     1.  The  mortgage  is  not  in  execution  of  the  power 
reserved  to  the  wife  under  the  deed  of  trust.    2.  If  it  is,  it  is 
such  a  defective  execution  of  the  power,  as  this  court  will  not 
aid.     A  feme  covert  cannot  dispose  of  her  real  estate  unless 
agreeably  to  the  act  of  Assembly;  or  under  some  power  re- 
served to  her  by  deed,  and  in  execution  of  such  power.     This 
deed  cannot  be  considered  a  mortgage ;  nor  is  it  in  execution 
of  the  power  reserved  to  her  under  the  deed  of  trust.     The 
case  of  Price  fy  Nisbet  vs.  BigJiam's  .EzYs,  is  not  similar  to  the 
present.     There  the  contract  was  for  improvements  to  be  made 
on  her  estate;  and  there  was  an  attempt  by  her  and  her  trustee 
to  execute  the  power  reserved  to  her. — Here  the  wife  could 
not  contract,  except  in  the  way  pointed  out  by  the  trust.     She 
must  have  united  with  the  trustees  in  any  transfer  of  the  pro- 
perty.    It  cannot  be  a  contract  by  a  feme  covert,  unless  executed 


OF  MARYLAND. 


Tiernan  t<s.  Poor,  et  ux.  et  al — 1829. 


agreeably  to  the  act  of  Assembly,  or  according  to  the  power 
reserved  to  her  under  the  deed  of  trust.  The  estates  of  femes 
covert  are  strictly  protected.  This  is  not  such  a  defective  exe- 
cution of  the  trust  as  will  be  aided  by  this  court.  No  such  case 
can  be  found  where  it  was  ever  done. 

The  question  relative  to  the  plea  will  occur  in  another  case 
against  the  same  defendants,  and  will  be  there  argued.  But 
there  is  a  plea,  and  there  was  a  general  replication  to  it.  The 
Chancellor  says  so,  and  he  is  presumed  to  know  the  state  of  his 
own  records. 

Gill,  in  reply.  The  debt  due  by  Poor  to  the  complainant, 
was  extinguished  by  the  surrender  of  the  distress.  The  dis- 
tress was  abandoned  at  the  instance  of  Mrs.  Poor,  and  it  then 
became  her  debt,  for  which  she  contracted  to  pay  the  amount. 
There  was  as  strong  an  inducement  in  this  case  for  the  wife  to 
enter  into  the  contract,  as  there  was  for  Mrs.  Price's  contracting 
in  the  case  of  Price  fy  Nisbet  vs.  BighamSs  Ex'rs.  No  particu- 
lar form  of  conveyance  is  pointed  out  in  the  deed  of  trust  before 
mentioned,  and  the  manner  in  which  Mrs.  Poor  might  contract,  is 
unlimited.  She  could  act  as  a  feme  sole ;  and  if  so,  she  need 
not  have  been  examined  apart  from  her  husband  on  acknowledg- 
ing the  mortgage  to  the  complainant.  Her  husband  need  not 
have  been  a  party  to  the  mortgage.  It  was  valid  without  his 
being  a  party  or  consenting  to  it.  What  is  the  effect  of  her  co- 
venant in  the  mortgage  ?  She  has  covenanted  for  further  as- 
surances to  make  her  mortgage  effectual  in  case  of  need — and 
therefore  as  Mrs.  Poor'*  contract  can  be  enforced  as  if  she  were 
a  feme,  admitting  the  deed  to  be/defective  as  a  mortgage  to  pass 
the  estate ;  yet  there  is  such  a  contract  as  a  Court  of  Equity, 
which  assumes  that  done  which  ought  in  honesty  to  be  done, 
can  enforce.  The  Chancellor  undoubtedly  supposed  there  was 
a  general  replication,  but  it  is  believed  he  adopted  that  error, 
from  the  fact  that  another  case  against  the  same  defendants  upon 
the  same  deed  of  trust,  was  before  him  at  the  time  he  decided 
this,  in  which  other  case,  there  was  a  general  replication  and 
commission — We  deny  that  its  existence  is  to  be  assumed,  be- 
cause the  Chancellor's  decree  assumes  such  existence,  the  mis- 
VOL.  I.— 29. 


226         CASES  IN  THE  COURT  OF  APPEALS 

Tiernan  vs.  Poor,  et  ux.  et  al. — 1829. 

take  in  that  fact,  which  might  happen  to  the  most  cautious  under 
such  circumstances,  is  one  of  the  grounds  of  this  appeal. 

ARCHER,  J.  delivered  the  opinion  of  the  court. 

It  will  not  be  necessary  in  this  case,  to  determine  whether 
the  defence  of  the  defendant  is  partly  an  answer,  and  partly  a 
plea  in  bar,  or  whether  it  is  a  plea  in  bar  supported  by  an 
answer,  or,  if  a  plea,  whether  it  is  overruled  by  the  answer. 
These  questions  not  necessarily  arising  on  the  record;  no  repli- 
cation has  been  filed,  and  the  cause  has  been  set  down  for  hear- 
ing by  agreement  of  counsel  upon  the  proceedings  in  the  case; 
if  it  be  an  answer,  upon  bill  and  answer,  if  a  plea,  then  upon 
the  bill  and  plea,  in  either  case,  all  the  facts  set  forth  in  the  bill 
are  admitted  to  be  true,  not  by  setting  the  cause  down  for  hear- 
ing, but  by  the  pleadings  in  the  cause,  and  if  the  defence  be  in 
fact  a  plea,  the  cause  having  been  set  down  for  hearing,  the 
question  is  submitted  on  its  legal  sufficiency  to  bar  the  remedy 
which  the  complainant  seeks. 

The  facts  of  the  case  appear  to  be,  that  Dudley  Poor  was  in- 
debted to  Luke  Tiernan,  in  the  sum  of  six  hundred  dollars,  for 
rent  in  arrear — That  for  the  purpose  of  securing  the  amount 
due,  Tiernan  levied  a  distress  upon  the  goods  of  Poor — That  to 
relieve  his  property  from  this  lien,  thus  acquired  by  Tiernan, 
Poor  and  Wife  agreed  with  him  that  they  would  execute  the 
paper,  purporting  to  be  a  mortgage,  filed  with  the  proceedings, 
and  Tiernan,  in  consideration  thereof,  agreed  to  give  up  his 
distress — That  upon  the  fulfilment  of  the  agreement  on  the  part 
of  Poor  and  Wife,  the  goods  levied  upon  were  given  up,  and  his 
lien  by  distress  surrendered. 

That  the  property  upon  which  the  mortgage  operated  had 
belonged  to  Mrs.  Poor,  and  had  been  conveyed  by  a  deed  of 
trust,  on  the  24th  of  August,  1816,  by  Poor  and  Wife,  to  Colum- 
bus CfDonnell  and  John  H.  Poor,  for  the  sole  and  separate  use 
of  Mrs.  Poor,  during  life,  and  in  no  wise  answerable  for  his 
debts  and  engagements,  with  a  power  to  her  to  sell,  convey  and 
dispose  of  absolutely,  in  such  manner  as  she  might  think  proper 
to  direct,  without  the  concurrence  of  her  husband,  and  from 


OF  MARYLAND.  227 


Tiernan  vs.  Poor,  et  ux.  et  al. — 1829. 


and  after  her  decease,  such  parts  of  the  property  as  should 
be  left  undisposed  of  by  her  deed  or  contract,  was  conveyed  in 
trust  to  her  children  and  their  heirs,  as  tenants  in  common. 

In  the  case  of  Price  fy  Nesbit  vs.  Bighorn's  JSzYs,  the  ques- 
tion was  presented  how  far  it  was  competent  for  a  married 
woman,  by  a  contract  under  seal,  to  charge  the  payment  of  a 
debt  on  her  real  estate,  which  was  settled  on  her  by  a  deed  of 
trust  for  her  separate  use,  with  a  power  to  sell  and  convey  and 
absolutely  to  dispose  of  the  same,  by  a  deed  duly  executed  by 
her,  her  coverture  notwithstanding,  and  in  delivering  their 
opinion  on  this  point,  the  court  after  stating  that  by  the  express 
terms  of  the  trust,  she  might  pass  her  lands  by  deed,  and  they 
emphatically  ask  if  this  power  exist,  "  how  can  the  power  to 
encumber  it  by  mortgage  or  charge  it  by  contract,  be  denied  to 
her?"  The  law  allows  her,  notwithstanding  her  coverture,  to 
part  from  her  whole  estate,  upon  the  principle,  that  in  doing  so, 
she  acts  as  a  feme  sole  as  to  her  separate  property,  and  upon 
the  like  principle,  and  to  promote  fair  dealing,  it  must  be  con- 
ceded to  her  to  charge  and  encumber  it  with  her  debts. 

Whether  the  instrument  of  writing  which  forms  the  basis  of 
this  call,  for  the  interposition  of  a  Court  of  Equity,  be  in  fact 
a  mortgage,  in  the  legal  and  technical  sense  of  that  term,  in  con- 
sequence of  its  not  having '  been  acknowledged  by  Mrs.  Poor 
in  the  manner,  in  which  the  acts  of  Assembly  require  the  ac- 
knowledgment of  /erne's  covert  to  be  made,  it  is  not  necessary 
to  determine.  Nor  do  we  mean  to  intimate  any  opinion  upon 
the  subject.  For  the  principle  is  a  well  settled  and  familiar 
one,  that  where  any  instrumenjt  of  writing  is  designed  to  ope- 
rate as  a  transfer  of  property,  and  proper  and  apt  terms  are 
used  whereby  the  meaning  of  the  parties  can  be  clearly  ascer- 
tained, if  some  circumstances  are  omitted  to  give  it  legal  valid- 
ity, whereby  it  is  deprived  of  its  intended  specific  operation,  a 
Court  of  Equity  will  set  it  up  as  a  contract,  or  as  evidence  of 
a  contract,  and  where  the  rights  of  innocent  third  parties  would 
not  thereby  be  effected,  will,  as  between  the  parties  to  such 
instrument,  carry  it  into  specific  execution,  provided  it  be 
founded  upon  a  valuable  consideration,  2  P.  W.  242.  The 


CASES  IN  THE  COURT  OF  APPEALS 

Tiernan  vs.  Poor,  tt  we.  et  al. — 1829. 

deed  in  this  case  was  clearly  intended  to  be  a  mortgage  to  se- 
cure the  payment  of  the  complainants  debt,  and  was  no  doubt 
meant  by  the  parties  to  be  clothed  with  all  the  formalities  and 
solemnities  necessary  to  give  it  a  legal  and  effective  operation 
as  such.  Its  design  and  meaning  was  to  secure  a  particular 
debt,  and  to  charge  it  as  a  lien  on  the  wife's  separate  property^ 
If  it  be  deprived  of  legal  validity  for  the  want  of  a  privy  ex- 
amination, we  are  still  at  liberty  to  look  at  it  as  illustrating  and 
evidencing  the  agreement  of  the  parties,  and  will  coerce  its 
execution  according  to  that  original  design.  Such  a  course 
would  be  demanded  by  the  first  principles  of  equity.  For 
what  could  be  more  inequitable  than  to  permit  a  party  to  escape 
from  the  fulfilment  of  his  contracts,  by  the  mere  omission  of 
legal  forms  ? — in  which  omission  too,  he  may  have  been  the  sole 
actor,  and  in  all  cases  a  participator,  and  to  allow  him  to  reap 
the  advantages  from  such  omission,  of  all  the  consideration 
which  constituted  his  inducement,  for  entering  into  the  contract. 

A  voluntary  contract  could  neither  be  coerced  in  equity,  nor 
could  advantages  from  it  be  obtained  at  law.  And  this  leads 
us  to  the  enquiry,  whether  the  consideration  here  was  valuable, 
and  of  this  there  cannot  be  a  question  entertained.  The  admis- 
sion in  the  cause  shew  that  the  complainant  surrendered  his  lien 
on  the  property  distrained  in  consideration  of  the  security, 
which  he  and  all  the  parties  to  it  believed  he  had  obtained  by 
the  mortgage.  It  was  the  mere  substitution  by  consent  of  one 
security  for  another,  and  if  relying  on  the  acts  of  the  parties, 
he  has  relinquished  a  certain  indemnity,  and  is  now  to  be  told, 
that  his  security  taken  in  return,  and  intended  as  an  equivalent, 
is  gone,  the  result  would  be,  that  equity  would  enable  them  to 
perpetrate  a  fraud. 

But  it  is  said  that  the  wife  was  not  benefitted  by  any  of  these 
stipulations.  It  is  not  necessary  that  she  should  have  been.  It 
is  sufficient,  acting  with  her  property  as  a  feme  sole :  that  she 
contracted  to  pass  it  for  her  husband's  debts,  on  condition  that  a 
benefit  should  be  bestowed  upon  her  husband,  and  that  the 
creditor  seeking  the  benefit  of  this  contract,  and  relying  upon  it, 
surrendered  an  existing  security  or  advantage. 


OF  MARYLAND.  229 


Tiernan  vs.  Poor,  et  ux.  et  al — 1829. 


It  is  not  meant  to  intimate  in  any  thing  which  has  been  said, 
that  however  the  complainant  might  suffer  by  a  reliance  upon  the 
conduct  of  those  with  whom  he  contracted,  that  the  execution 
of  this  contract  could  be  enforced  against  the  rights  of  disposi- 
tion contained  in  the  deed  of  trust.  That  would  constitute  a 
paramount  law,  governing  and  controling  every  contract  in 
relation  to  it,  and  it  need  be  scarcely  necessary  to  say,  that  no 
decree  could  pass  against  her  to  carry  into  effect  any  contract 
she  might  make,  unless  such  contract  were  within  the  limits  of 
her  jus  disponendi. 

This  is  a  stronger  case  in  favour  of  executing  the  contract, 
than  was  the  case  of  Price  fy  Nesbit  vs.  Bighorn's  Ex'rs. 
There  the  power  was  to  pass  the  estate  by  deed.  Here  it  is  by 
deed  or  contract.  Embracing  by  the  latter  term,  the  power  to 
pass  the  estate  by  every  kind  of  agreement  known  to  the  law, 
in  which,  estates  of  the  description  mentioned  in  the  deed  of 
trust,  could  pass. — As  a  feme  soZe,  she  had  power  to  contract 
with  any  one,  and  to  bind  her  estate,  and  to  charge  it  with  such 
contract.  The  power  is  sufficiently  large  and  unrestrained  to 
permit  her  to  contract  as  security  for  others,  and  thus  to  pass 
her  estate  for  the  benefit  of  the  principal,  and  to  secure  to  his 
creditors  their  debts — she  might  voluntarily  sell  her  lands,  and 
with  the  proceeds  pay  her  husband's  debts.  Why  might  she 
not  upon  a  consideration  incumber  it  for  the  same  purpose? 
There  is  nothing  in  the  spirit  and  meaning  of  the  deed  of  trust 
in  opposition  to  such  liberty;  on  the  contrary,  every  thing  to 
uphold  and  confirm  it — while  it/is  cautiously  guarded  against 
liability  for  her  husband's  debts(  her  will  and  power  over  it  is 
unrestrained.  And  if  she  chooses  to  exercise  a  kindness  to  her 
husband  in  discharging  his  debts,  and  thus  charging  her  lands 
upon  a  sufficient  consideration,  there  is  clearly  nothing  in  the 
intention  of  the  settlement  which  forbids  it.  She  was  never 
intended  to  be  placed  in  a  state  of  pupilage  with  regard  to 
her  property,  but  left  free  to  act  as  she  pleased,  with  regard  to 
it,  as  fully  and  as  perfectly  as  if  she  had  been  a  feme  so/e,  and 
as  if  she  had  the  legal  title;  nor  are  we  bound  in  order,  to  give 
effic  acy  to  her  acts,  to  see  that  she  has  sought  the  counsel  of 


230         CASES  IN  THE  COURT  OF  APPEALS 

Tiernants.  Poor,  etwc.  etal — 1829. 

her  friends,  or  solicited  the  permission  of  her  trustee — such  a 
limitation  would  restrict  her  will,  in  violation  of  the  essence  and 
spirit  of  the  power. 

It  is  supposed  that  the  allegations  in  the  bill  do  not  set  up  a 
proper  foundation  for  the  interposition  of  a  Court  of  Equity. 
The  plaintiff's  title  to  the  assistance  of  the  court,  must  always 
be  exposed  by  the  pleadings;  but  the  style  and  character  of 
pleading  in  equity  has  always  been  of  a  more  liberal  cast  than 
that  of  other  courts,  as  mispleading  in  matter  of  form  has  never 
been  held  to  prejudice  a  party,  provided  the  case  made  is  right 
in  matter  of  substance,  and  supported  by  proper  evidence. 
Cooper  Eq.  Plead.  7-8. 

The  allegations  then  contained  in  the  original  and  two  amend- 
ed bills,  are  in  substance  these — That  the  property  prayed  to 
be  sold  was  conveyed  to  trustees  in  trust  for  the  separate  use 
of  the  wife  of  Dudley  Poor,  setting  out  in  substance  the  uses 
and  trusts  to  which  the  property  was  subjected,  it  then  avers 
the  existence  of  a  debt  due  from  Poor  to  Tiernan,  that  Tier- 
nan  had  surrendered  his  lien  on  the  property  of  Poor,  in  consi- 
deration of  the  execution  of  a  mortgage  by  Poor  and  wife  on  the 
lands  of  the  wife  thus  conveyed  in  trust,  which  lands  thus  mort- 
gaged, are  prayed  to  be  sold  for  the  satisfaction  of  the  debt. 
According  to  our  views  these  averments  make  out  a  clear  case 
for  equitable  interposition.  In  point  of  form  it  may  not  have 
been  strictly  correct  to  treat  the  instrument  of  writing  in  contro- 
versy, as  a  legal  mortgage,  as  it  seems  to  have  been  done  in  the 
original  bill.  As  such  it  may  not  be  clothed  with  the  necessary 
legal  attributes.  If  it  be  not,  thus  clothed,  it  is  at  all  events, 
clearly  a  contract  which  equity  will  treat  as  a  mortgage,  and  as 
between  these  parties,  so  far  as  concerns  this  suit,  liable  to  all 
the  incidents  of  a  strictly  legal  mortgage,  as  much  so  as  if  all 
the  formalities  of  acknowledgment,  privy  examination,  and  re- 
gistration, had  been  pursued. 

Entertaining  the  views  we  do,  we  cannot  but  declare,  that  in 
substance,  the  allegations  are  correct  and  sufficient,  and  the 
equiiy  clear  and  unquestionable. 

THE  DECREE  OF  THE  CHANCELLOR  IS  REVERSED. 


OF  MARYLAND.  231 


Kiersted  vs.  The  State,  use  of  Costello — 1829. 


KIERSTED  vs.  THE  STATE,  use  of  COSTELLO. 
MORROW  vs.  THE  STATE,  use  of  ISRAEL. 
CHAMBERLAIN  vs.  THE  STATE,  use  of  KEILER. 

December,  1829. 

Where  an  applicant  for  a  discharge  under  the  acts  relating  to  insolvent  debt- 
ors, fails  to  appear  according  to  the  condition  of  the  bond  taken  from  him, 
an  action  in  the  name  of  the  State,  (the  obligee)  for  the  use  of  a  creditor, 
may  be  maintained  thereon,  against  the  applicant's  security  in  the  bond. 
The  pleadings  must  disclose,  that  the  equitable  plaintiff  was  a  creditor  of 
the  insolvent,  to  a  certain  amount;  and"the  applicant's  failure  to  appear. 
The  amount  of  the  creditor's  debt,  is  the  measure  of  damages;  and  neither 
the  poverty  of  the  applicant,  nor  the  fact,  that  no  allegations  were  filed 
against  him  by  creditors,  constitutes  a  defence  thereto. 

Obligations  in  which  many  persons  are  interested,  may  be  taken  in  the  name 
of  the  State,  whenever  the  law  is  silent  in  naming  the  obligees,  to  whom 
they  are  to  be  given. 

A  consistent  and  uniform  practice  under  various  acts  of  Assembly,  passed 
in  relation  to  the  same  subject,  so  fully  establishes  the  contemporaneous 
construction  of  the  first  act  in  the  system,  that  after  twenty  years,  it  has 
too  long  obtained,  to  be  shaken  and  disturbed. 

So  bonds  with  condition  for  the  appearance  of  insolvent  debtors,  made  to  the 
State  as  obligee,  are  sanctioned  by  the  uniform  practice  of  twenty  years, 
although  the  acts  of  Assembly,  under  which  they  are  required  to  be  exe- 
cuted, contain  no  specific  provision  for  making  them  to  the  State,  and 
creditors  may  bring  suits  on  them,  for  their  use,  though  not  expressly 
authorised  by  law  to  sue. 

KIERSTED  vs.  THE  STATE,  use  of  COSTELLO.  Appeal  from 
Baltimore  County  Court.  The  first  of  these  appeals  was  an  ac- 
tion of  debt  on  a  bond  executed  by  A".  Kimball,  an  applicant  for 
the  benefit  of  the  insolvent  laws,  with  the  appellant  (the  defendant 
below)  as  his  surety,  brought  at  the  instance  and  for  the  use  of 
Costello,  claiming  to  be  a  creditorof  the  insolvent.  The  defend- 
ant pleaded  general  performance  by  Kimball,  to  which  the  plain- 
tiff replied,  that  Kimball  was  indebted  to  Costello  in  the  sum  of 
$31  64,  and  that  Kimball  did  not  make  his  personal  appearance 
before  the  judges  of  Baltimore  County  Court,  at  &c.  on  the  first 
Saturday  of  September  term,  1821 ,  then  and  there  to  answer  such 
allegations  and  interrogatories,  as  his  creditors,  or  any  of  them, 
might  have  filed  against  him,  whereby  the  plaintiff  sustained 


CASES  IN  THE  COURT  OF  APPEALS 

Kiersted  w.  The  State,  use  of  Costello 1829. 

damage  to  the  amount  of  $64,  &c.  The  defendant  rejoined  that 
Kimball  was  not  indebted  to  Costello  in  the  said  sum  of  $31  64, 
or  any  part  thereof;  and  that  no  allegations  or  interrogatories 
were  ever  filed  with  the  said  court,  to  be  answered  by  Kimball 
on  the  first  Saturday  of  September,  1821,  or  at  any  other  time, 
by  the  creditors  of  Kimball,  or  any  of  them.  Issue  joined. 

At  the  trial,  the  plaintiff  oifered  in  evidence  the  bond  upon 
which  this  action  was  brought,  executed  by  Nathaniel  Kimball 
and  Luke  Kiersted,  (the  defendant)  to  the  Stale  of  Maryland, 
on  the  31st  of  January,  18^1,  in  the  penal  sum  of  $600,  and 
conditioned  as  follows,  viz.  "The  condition  of  the  above  obli- 
gation is  such,  that  if  the  above  bound  Natlianiel  Kimball  shall 
make  his  personal  appearance  before  the  Commissioners  of 
Insolvent  Debtors  for  the  City  and  County  of  Baltimore,  at  the 
Court  House,  in  the  said  city,  on  the  second  day  of  April  next, 
at  four  o'clock  in  the  afternoon,  and  answer  such  interrogatories 
as  may  be  propounded  to  him  by  any  of  his  creditors,  agreeably 
to  the  act  of  Assembly,  entitled,  an  act  relating  to  Insolvent 
Debtors,  in  the  City  and  County  of  Baltimore,  and  shall  also 
make  his  personal  appearance  before  the  judges  of  Baltimore 
County  Court,  at  the  court  house,  in  the  city  of  Baltimore,  on 
the  first  Saturday  of  September  term  next,  then  and  there  to 
answer  such  allegations  and  interrogatories  as  the  creditors  of 
the  said  Nathaniel  Kimball,  or  any  of  them,  may  have  filed 
against  him,  agreeably  to  the  said  act  of  Assembly,  and  the  act, 
entitled,  an  act  for  the  relief  of  sundry  insolvent  debtors,  and 
the  several  supplements  thereto,  and  continue  in  court,  until 
duly  discharged,  then  the  above  obligation  to  be  void,  else  to 
be  and  remain  in  full  force  and  virtue  in  law." 

The  plaintiff  proved  the  execution  of  the  said  bond  by  the 
subscribing  witness  thereto,  and  then  gave  in  evidence  a  warrant 
issued  on  the  15th  of  March,  1821,  by  a  justice  of  the  peace  of 
Baltimore  County,  against  the  said  Kimball,  to  answer  unto  the 
said  Costello  in  a  plea  of  debt,  &c.  upon  which  said  warrant  was 
thereon  endorsed,  the  following  judgment  which  the  plaintiff 
also  offered  in  evidence. 


OF  MARYLAND.  233 


Kiersted  vs.  The  State,  use  of  Costello.— 1829. 


"Judgment  in  favour  of  the  plaintiff,  for  thirty-one  dollars 
debt,  and  sixty-four  cents  costs,  with  interest  until  paid  or 
satisfied.  March  20,  1821." 

"  The  above  judgment  is  subject  to  the  defendant's  applica- 
tion for  the  benefit  of  the  insolvent  laws,  for  city  and  county  of 
Baltimore." 

The  plaintiff  also  proved  that  Kimball  did  not  make  his 
personal  appearance  before  the  judges  of  Baltimore  County 
Court,  on  the  first  Saturday  in  September,  1821;  but  did  appear 
before  the  Commissioners  of  Insolvent  Debtors.  The  defendant 
then  proved  that  no  allegations  or  interrogatories  were  filed  by 
either  the  said  Costello,  or  by  any  of  the  creditors  of  said 
Kimball,  either  before  the  Commissioners  of  Insolvent  Debtors 
or  Baltimore  County  Court.  The  defendant  then  prayed  the 
court  to  instruct  the  jury,  that  the  plaintiff  was  not  entitled  to 
recover.  Which  instructions  the  court  [Hanson  and  Ward,  Ji.  J.] 
refused  to  give. 

The  defendant  excepted.  Verdict  that  Kimball  did  not  well 
and  truly  observe,  perform,  &c.  all  and  singular,  the  articles,  &c. 
in  the  condition  of  the  writing,  obligatory  on  his  part  to  be 
performed,  &c.  and  damages  assessed  to  the  sum  of  {§37  65. 
Judgment  upon  the  verdict  against  the  defendant,  for  $600  debt 
and  costs,  with  a  memorandum  that  the  judgment  was  to  be 
released  on  payment  of  the  said  sum  of  $37  65,  with  interest 
from,  &c.  and  costs.  From  this  judgment  the  defendant  ap- 
pealed to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN  and  DORSEY,  J. 

Mitchell  for  the  appellant  contended, — 1.  That  Costello  had 
no  right  to  bring  this  suit.  2.  That  the  refusal  of  the  court 
below  to  grant  the  defendant's  prayer,  was  not  authorised  by 
law  or  the  evidence  in  the  bill  of  exceptions.  3.  That  the  ver- 
dict was  void  in  law.  4.  That  the  judgment  was  erroneous  in 
form  and  substance. 

If  the  condition  of  the  bond  was  violated,  no  individual 
creditor  could  bring  suit  on  it;  if  he  could,  it  must  be  a  credi- 
VOL.  I.— 30. 


234          CASES  IN  THE  COURT  OF  APPEALS 

Kiersted  vs.  The  State,  use  of  Costello.— 1829. 

tor  for  whose  debt  the  insolvent  was  imprisoned.  This  bond 
was  given  to  the  State,  and  no  authority  is  given  for  its  being 
put  in  suit  for  the  use  of  an  individual.  Suppose  there  is  a 
judgment  given  in  this  case,  how  are  the  other  creditors  to  pro- 
ceed? Can  each  of  them  bring  a  scire  facias  on  this  judgment; 
or  must  suits  be  brought  on  the  bond  for  the  use  of  each  credi- 
tor? One  judgment  on  the  bond  absorbs  it.  Where  bonds 
are  directed  to  be  given  to  the  State,  a  remedy  is  prescribed 
for  suits  being  brought  on  them  for  the  use  of  any  individual 
who  may  be  damnified — Such  as  on  the  bonds  of  sheriffs,  ex- 
ecutors, and  administrators,  &c.  But  there  is  no  general  law 
on  the  subject,  as  in  Pennsylvania.  3Yeates,345.  Corporation 
of  Washingtonvs.  Young,  10  Wheat.  406.  By  the  act  of  1805, 
ch.  110,  sec.  11,  the  bond  is  directed  to  be  given  as  a  security 
for  those  creditors  only,  by  whom  the  insolvent  is  imprisoned. 
1 807,  ch.  1 50,  sec.  3.  1 808,  ch.  7 1 ,  sec.  2.  181 6,  ch.  22 1 ,  sec.  2. 
1821,  ch.  250.  Commonwealth  vs.  Hatch,  5  Mass.  Rep.  191. 
The  creditor  must  show  himself  to  be  such,  and  to  what  amount 
he  has  been  damnified.  Here  the  verdict  does  not  find  the 
matter  in  issue — How  much  the  party  was  damnified.  The 
issue  is  taken  upon  the  fact,  whether  the  insolvent  was  indebted, 
and  whether  any  interrogatories  had  been  filed;  and  the  verdict 
is,  that  the  insolvent  did  not  perform,  &c.  A  verdict  is  void  if 
it  does  not  state  what  damages  have  been  sustained  by  the 
party.  5  Com.  Dig.  tit.  Pleader,  524.  7  Bac.  M.  tit.  Verdict 
(M.)  1 8,  (R.)  37.  Hambkton  vs.  Feere,  3.  Saund.  171. 

R.  Johnson,  for  the  appellee.  The  objection  that  Costello 
had  no  right  to  bring  this  action,  comes  too  late,  being  after 
verdict.  The  assent  to  sue  on  the  bond  will  be  presumed  to 
have  been  given.  McMechen  vs.  The  Mayor  4'c.  of  Baltimore, 
2  Harr.  fy  Johns.  41.  In  Corporation  of  Washingtonvs.  Young, 
10  Wheat.  409,  the  corporation  refused  to  give  permission 
to  have  the  bond  put  in  suit.  The  condition  of  the  bond  in 
question  is  for  the  benefit  of  all  the  creditors  of  the  insolvent. 
Ought  it  to  be  otherwise?  As  to  the  objection  to  the  verdict, 
it  is  now  too  late  to  object  to  it.  The  issue  was  found  by  the 


OF  MARYLAND.  235 


Morrow  vs.  The  State,  use  of  Israel — 1829. 


jury  in  favour  of  the  plaintiff,  but  it  is  incorrectly  stated  by  the 
clerk.  So  far  as  the  issue  is  as  to  the  not  filing  allegations,  it 
was  an  immaterial  issue;  for  the  creditors  were  not  bound  to 
file  allegations  until  the  insolvent  appeared.  1  Chilly's  Plead. 
634.  2  Tidd's  Pr.  813,  814.  The  verdict  ascertains  the 
debt.  What  ought  to  be  the  damages?  They  must  be  to  the 
amount  of  the  debt  due  to  the  creditor  for  whose  use  the  action 
is  brought.  But  it  may  be  said  that  the  bond  was  not  forfeited, 
there  being  no  allegations  filed.  The  debtor  must  have  ap- 
peared according  to  the  condition  of  his  bond,  and  in  his  plea 
in  this  suit  he  should  have  averred  that  fact.  5  Sac.  Ab.  tit. 
Obligation ,  (JF\)  174.  Archbishop  of  Canterbury  vs.  Willis,  I 
Salk.  172. 

Mitchell  in  reply.  The  defendant's  pleading  that  no  allega- 
tions were  filed  against  the  insolvent  debtor,  goes  to  the  right 
of  the  equitable  plaintiff  to  recover.  There  was  no  issue  join- 
ed whether  the  insolvent  debtor  appeared  or  not.  In  this-  case, 
a  motion  in  arrest  of  judgment  would  have  prevailed;  and  if 
so,  advantage  may  be  taken  of  it  on  this  appeal.  There  should 
have  been  proof  that  permission  was  given  to  Costello  to  sue 
on  the  bond,  as  the  defendant's  prayer  to  the  court  was  a  gen- 
eral one,  that  the  plaintiff  could  not  recover.  Here  is  a  judg- 
ment, and  it  is  a  bar  to  any  other  action  on  the  same  bond. 

MORROW  vs.  THE  STATE,  use  of  ISRAEL — Appeal  from  Bal- 
timore County  Court.  This  second  appeal  was  also  an  action 
of  debt  brought  on  a  writing  obligatory  entered  into,  to  the  State, 
on  the  4th  of  May,  1821,  by  Jjfugh  Irelon  with  William  Mor- 
row, (the  defendant  below,  novv  appellant)  as  his  surety,  in  the 
penalty  of  $500  conditioned,  "  that  if  the  said  Hugh  Ireton  shall 
make  his  personal  appearance  before  the  Commissioners  of  In- 
solvent Debtors  for  the  city  and  county  of  Baltimore,  at  the 
Court  House  in  the  said  city,  on  the  2d  of  July  then  next,  at 
four  o'clock  in  the  afternoon,  and  answer  such  interrogatories  as 
may  be  propounded  to  him  by  any  of  his  creditors,  agreeably 
to  the  act  of  Assembly,  entitled,  'An  act  relating  to  insolvent 
debtors  in  the  city  and  county  of  Baltimore.1  And  shall  also 


Q.T.         CASES  IN  THE  COURT  OF  APPEALS 

Morrow  vs.  The  State,  use  of  Israel — 1829. 

make  his  personal  appearance  before  the  Judges  of  Baltimore 
County  Court,  at  &c.  on  the  first  Saturday  of  September  term 
then  next,  then  and  there  to  answer  such  allegations  and  inter- 
rogatories as  the  creditors  of  the  said  Hugh  Ireton,  or  any  of 
them  may  have  filed  against  him,  agreeably  to  the  said  act  of 
Assembly,  and  the  act,  entitled,  '  An  act  for  the  relief  of  sun- 
dry insolvent  debtors,'  and  the  several  supplements  thereto,  and 
continue  in  court  until  duly  discharged;  then,"  &c.  The  de- 
fendant pleaded  general  performance,  to  which,  there  was  a 
replication  stating  that  the  said  Ireton,  on  the  4th  of  May,  1821, 
made  application  to  the  Commissioners  of  Insolvent  Debtors  for 
the  city  and  county  of  Baltimore,  for  a  discharge  under  the  in- 
solvent laws  of  this  State;  that  the  Commissioners  then  ordered 
that  the  said  Ireton  should  be  discharged,  and  they  did  then  ap- 
point and  fix  the  2d  of  July,  1821,  for  the  appearance  of  Ire- 
ton,  before  them  at,  &c.  to  answer  such  interrogatories  as  should 
be  propounded  to  him  by  any  of  his  creditors;  and  also  did  then 
appoint  and  fix  the  first  Saturday  of  September  term  then  next, 
of  Baltimore  County  Court,  then  to  answer  such  allegations  and 
interrogatories,  as  the  creditors  of  the  said  Ireton,  or  any  of 
them  might  file  against  him,  and  to  continue  in  court  until  duly 
discharged.  That  Beale  Israel,  being  one  of  the  creditors  of 
Ireton,  to  a  large  amount,  to  wit,  in  the  sum  of  $500,  did  file 
with  the  Commissioners  of  Insolvent  Debtors  for  the  city  and 
county  of  Baltimore,  before  the  said  second  of  July,  1821,  to 
wit,  on  the  first  of  July,  1821,  certain  interrogatories  to  be  an- 
swered by  the  said  Ireton.  That  the  said  Ireton  never  did  ap- 
pear before  the  said  Commissioners  on  the  second  of  July,  as 
aforesaid,  or  on  any  other  day;  and  also  that  the  said  Ireton 
never  appeared  before  Baltimore  County  Court,  but  absented 
himself  therefrom,  to  deceive  and  defraud  his  creditors.  Of  all 
which  premises  the  defendant,  afterwards,  &c.  had  notice.  And 
the  said  Beale  Israel,  at  whose  instance  and  for  whose  use  this 
suit  is  instituted,  was,  by  reason  of  the  premises,  prevented  from 
suing  and  holding  to  bail  the  said  Ireton,  and  hath  never  since 
been  able  to  arrest  the  said  Ireton,  and  hath  by  occasion  of  the 
premises,  wholly  lost  his  claim  as  aforesaid,  on  the  said  Ireton; 


OF  MARYLAND.  237 


Morrow  vs.  The  State,  use  of  Israel — 1829. 


and  this,  &c.  The  defendant  rejoined  to  the  replication  that 
the  said  Ireton  did  appear  before  the  said  Commissioners  on  the 
said  second  of  July,  1821,  and  that  he  also  appeared  before 
Baltimore  County  Court,  and  did  not  absent  himself  therefrom 
to  deceive  and  defraud  his  creditors.  Issue  joined. 

1.  At  the  trial  the  plain  tiff  gave  in  evidence  the  application  of 
Hugh  Ireton,  for  the  benefit  of  the  insolvent  laws  of  this  State, 
and  all  the  papers  connected  therewith;  and  also  the  docket 
entries  of  the  Commissioners,  in  his  case.  The  report  of  the 
Commissioners  of  Insolvent  Debtors,  for  the  city  and  county  of 
Baltimore,  dated  the  22d  of  September,  1821,  stated  the  fol- 
lowing proceedings  had  before  them,  viz.  the  petition  of  Hugh 
Ireton  of  the  city  of  Baltimore,  praying  for  the  benefit  of  the 
insolvent  laws,  dated  the  4th  of  May,  1821.  A  schedule  of  his 
property,  real,  personal  and  mixed,  excluding  the  necessary 
wearing  apparel  and  bedding  of  himself  and  his  family,  amount- 
ing (being  household  and  kitchen  furniture,)  to  $40.  A  list 
stating  that  there  were  no  debts  due  to  him.  A  list  of  his 
creditors,  and  among  others  Beale  Israel,  $41  66.  The  whole 
amount  of  his  debts  as  stated,  being  $224  03.  All  of  which 
was  sworn  to  by  the  petitioner.  Proof  of  the  necessary  resi- 
dence of  Ireton  in  the  State,  and  that  he  was  in  custody,  &c. 
The  Commissioners  then  appointed  and  fixed  the  2d  of  July 
then  next,  for  the  personal  appearance  of  Ireton  before  them, 
at  &c.  "to  answer  such  interrogatories  as  may  be  propounded  to 
him  by  any  of  his  creditors;"  and  they  also  appointed  and  fixed 
the  first  Saturday  in  the  next/ September  term  of  Baltimore 
County  Court,  for  the  final  appearance  of  the  said  insolvent  before 
the  said  court,  "to  answer  such  allegations  as  may  be  made  against 
him  by  his  creditors,  or  any  of  them,  and  for  the  final  hearing  of 
his  said  application."  The  bond  entered  into  to  the  State  of  Mary- 
land, by  Hugh  Ireton  and  William  Morrow,  on  the  4th  of  May, 
1821,  in  the  penalty  of  $500,  and  conditioned  for  the  personal 
appearance  of  Ireton  before  the  Commissioners,  and  before  Bal- 
timore County  Court,  on  the  respective  days  before  mentioned. 
Also  the  bond  entered  into  by  Thomas  Power  with  William  Mor- 
row, as  his  surety,  to  the  State  of  Maryland,  on  the  4th  of  May, 


238         CASES  IN  THE  COURT  OF  APPEALS 

Morrow  vs.  The  State,  use  of  Israel — 1829. 

1821,  in  the  penalty  of  $500,  reciting  that  the  said  Poirer  had 
been  appointed  by  the  Commissioners,  provisional  trustee  to 
take  possession,  for  the  benefit  of  the  creditors  of  Ircton,  of  all 
his  property,  &c.  and  conditioned  that  Power  well  and  faithfully 
perform  the  said  trust,  &c.     Also  a  deed  of  conveyance,  dated 
the  4th  of  May,  1821,  executed  by  Ircton  to  Power,  the  pro- 
visional trustee,  conveying  all  his  property,  &c.    The  certificate 
of  Power,  the  provisional  trustee,  that  he  had  received  from 
Ireton  all  his  property,  &c.    Then  follows  the  personal  discharge 
of  Ireton,  granted  to  him  by  the  Commissioners.     Certain  inter- 
rogatories were  then  stated  to  have  been  propounded  to  Ireton 
on  the  part  of  Beale  Israel,  to  which,  answers  were  given  by 
Irelon,  and  sworn  to  by  him,  on  the  llth  of  July,  1821.     The 
Commissioners  then  further  reported  to  Baltimore  County  Court, 
"  that  having  diligently  inquired  and  examined   into  the  nature 
and  circumstances  of  the  said  application,  it  appears  upon  such 
examination,  that  the  said  Ireton  hath  not  complied  with  the 
terms  and  conditions  of  the  said  insolvent  laws,"  &c.     Where- 
upon it  was  considered  and   adjudged  by  Baltimore  County 
Court,  on  the  22d  of  September,  1821,  that  the  said  Ireton 
was  not  entitled  to  the  benefit  of  the  acts  of  Assembly  for  the 
relief  of  insolvent   debtors;   and  that,  therefore,  the   prayer 
of  the  said  petitioner  ought  not  to  be  granted.     The  docket 
entries  of  the   Commissioners  on  Iretori*s   petition,   given   in 
evidence   as  before   mentioned,  show  that  "the  petition  was 
filed  on  the  4th  of  May,  1821" — "T/iomas  Power  was  appointed 
provisional  trustee" — that  "the  petitioner  was  to  appear  before 
the  Commissioners,  to  answer  interrogatories  on  the  2d  July, 
1821,  and  to  appear  before  Baltimore  County  Court  on  the  first 
Saturday  of  September  term,  1821,  for  final  discharge.     His 
"personal  discharge  was  filed,"  and  "an  order  for  publication 
delivered  to  the  printer."     On  the  "12th  of  May,  1821,  inter- 
rogatories were  filed — Answer  filed."     On  the  "2d  of  July, 
1821,  the  petitioner  appears — Provisional  trustee  continued. 
22d  of  September,  1821,  no  appearance — No  benefit."     The 
plaintiff  then  proved  that  the  said  Ireton,  at  the  time  of  his  said 
application,  was,  and  still  is,  indebted  to  the  said  Israel,  in  the 


OF  MARYLAND.  239 


Morrow  vs.  The  State,  use  of  Israel — 1829. 


sum  of  $41  66.  The  defendant  then  prayed  the  court  to  direct 
the  jury  upon  the  foregoing  evidence,  that  the  plaintiff  was  not 
entitled  to  recover.  Which  direction  the  court  [ARCHER,  Ch. 
J.  and  Hanson  and  Ward,  A.  J.]  refused  to  give.  The  defend- 
ant excepted. 

2.  The  defendant  then  offered  evidence  to  prove  that  the  said 
Ireton,  before,  and  at  the  time  of  his  application,  as  set  forth 
in  the  foregoing  bill  of  exceptions,  was  extremely  poor,  and  had 
no  other  property  than  that  conveyed  to  his  trustee,  under  the 
deed  of  trust  aforesaid.  To  the  admission  of  which  evidence, 
the  plaintiff  objected.  Which  objection  the  court  sustained. 
The  defendant  excepted;  and  the  verdict  being  for  $51,  and 
judgment  thereon  rendered,  for  the  penalty  of  the  bond,  &c.  he 
appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  and  DORSEY,  J. 

Williams ,  (District  Attorney  of  United  States.)  The  points 
for  the  consideration  of  the  court  are — 1 .  Whether  the  appear- 
ance bond  of  the  insolvent  debtor,  has  been  legally  given? 

2.  Whether  the  cestui  que  use  can  recover  more  than  nominal 
damages,  if  he  proves  no  damages?     And  he  gave  no  evidence 
that  he  was  damnified  by  the  forfeiture  of  the  bond. 

3.  The  evidence  offered  -by  the  defendant  that  cestui  que  use 
was  not  damnified,  was  rejected  by  the  court  below. 

4.  The  damages  should  have  been  nominal. 

1.  No  bond  to  the  State  is  vaUd,  unless  given  pursuant  to  some 
act  of  Assembly.  Owings  vs.  /Norwood,  2  Harr.  fy  Johns.  108, 
(note.)  The  bond  to  be  given  by  a  trustee,  under  the  act  of 
1805,  ch.  110,  sec.  4,  is  expressly  required  to  be  given  to  the 
State.  But  the  bond  required  by  the  eleventh  section  to  be  giv- 
en by  the  insolvent  debtor  for  his  appearance,  &c.  is  not  requir- 
ed to  be  so  given — it  is  not  said  to  whom  the  bond  is  to  be 
given.  By  the  act  of  November,  1788,  ch.  17,  sec.  5,  the  trus- 
tee of  an  insolvent  debtor  was  required  to  give  bond  to  the 
State.  By  the  act  of  1791,  ch.  73,  sec.  3,  the  trustee  to  give 
bond  to  such  person  as  the  Chancellor  should  direct;  and  the 


•>10          CASES  IN  THE  COURT  OF  APPEALS 

Morrow  vs.  The  State,  use  of  Israel — 1829. 

Chancellor  directed  such  bonds  to  be  given  to  the  Attorney 
General.     The  same  provision  is  contained  in -the  act  of  1792, 
ch.  67,  sec.  3.     By  the  tenth  section  of  that  act,  an  imprisoned 
debtor,  if  required  by  the  Chancellor,  was  to  give  bond :  but  it 
is  not  said  to  whom  such  bond  was  to  be  given.     The  practice 
seems  to  have  been  that  the  Chancellor  directed  the  bond  to  be 
given  to  the  sheriff  of  the  county  in  which  the  debtor  resided. 
Similar  provisions  are  contained  in  the  acts  of  1793,  ch.  68,  sec.  3, 
10.     1794,  ch.  72,  sec.  3,  10.     1795,  ch.  82,  sec.  3,  10.     1796, 
ch.  70,  sec.  4,  1 1.     By  the  act  of  1797,  ch.  82,  sec.  7,  the  bonds 
of  the  debtors  are  to  be  given  to  the  trustees.     The  act  of  1797, 
ch.  97,  sec.  4,  11,  contains  the  same  provisions  as  the  act  of 
1796,  ch.  70,  sec.  4,  11,  &c.     Similar  provisions  are  also  con- 
tained in  the  acts  of  1798,  ch.  64,  sec.  4,  11,  and  1799,  ch.  88, 
sec.  4,  1 1.    By  the  act  of  1804,  ch.  1 10,  sec.  4,  trustees  were  re- 
quired to  give  bonds  to  the  State.    By  the  eleventh  section  of 
that  act,  imprisoned  debtors,  if  required  by  the  County  Court, 
&c.  are  to  give  bonds  with  security,  for  their  appearance,  &c. 
but  it  is  not  said  to  whom  such  bonds  were  to  be  given.     The 
act  of  1805,  ch.  110,  sec.  4,  11,  has  the  same  provisions.     The 
same  expressions  will  be  found  in  the  act  of  1808,  ch.  71,  sec.  2. 
We  come  now  to  the  act  of  1816,  ch.  221,  sec.  2,  whereby  the 
Commissioners  of  Insolvent  Debtors  for  the  city  and  county  of 
Baltimore,  are  required  to  take  a  bond  for  the  petitioner's  ap- 
pearance, &c.  "  with  security  to  be  by  them  approved."    From 
all  the  preceding,  it  will  be  seen  that  there  is  no  provision  of 
law  which  authorises  the  giving  of  a  bond  by  a  petition  for  the 
benefit  of  the  insolvent  laws,  to  the  State  of  .Maryland.     The 
bond  of  a  trustee  of  an  insolvent  debtor  is  expressly  provided  to 
be  for  tlie  use  of  the  creditors  of  the  insolvent,  whereas  the  bond 
to  be  given  by  the  debtor  is  not  provided  to  be  for  such  use. 
No  suit  can  be  maintained  on  a  public  bond,  unless  the  law  pro- 
vides that  persons  damnified  may  bring  suit  on  any  such  bond. 
This  was  the  argument  in  M^Mechen  vs.   The  Mayor,  fyc.  of 
Haltimore,  3  Harr.  8f  Johns.  534.     See  the  acts  1794,  ch.  54, 
and  1798,  ch.  101,  siib-ch.  3,  sec.  10,  sub-ch.  12,  sec.  5.     And  as 
analagous,  he  referred  to  3  Saund.  412,415  (no/e.)  1  T.  R.  287. 


OF  MARYLAND.  241 


Morrow  vs.  The  State,  use  of  Israel — 1829. 


Kerr  vs.  The  State,  3  Harr.  fy  Johns.  560.     Ellicott  vs.  The 
Levy  Court,  fyc.  I  Harr.  fy  Johns.  359. 

2.  The  bond  being  given  that  the  insolvent  debtor  shall  ap- 
pear, &c.  cannot  be  for  the  benefit  of  the  creditors,  if  he  does 
not  appear.     At  all  events,  the  debtor  failing  to  appear  cannot 
subject  the  surety  to  the  payment  of  all  the  debts  due  to  credi- 
tors.    In  an  action  on  a  bond  with  a  collateral  condition  to  se- 
cure third  parties,  there  ought  to  be  some  evidence  of  damage; 
or  else,  why  should  the  plaintiff  be  permitted  to  sue?     What 
interest  has  this  creditor  in  this  bond,  (his  name  not  appearing 
in  it,)  except  because  he  is  damnified  by  the  non-appearance 
of  his  debtor?     He  ought  to  have  given  some  slight  evidence 
of  injury  sustained  by  the  forfeit  of  the  bond.     It  would  be  a 
violent  presumption,  without  evidence  and  against  evidence,  to 
presume  that  he  is  damnified  to  the  whole  amount  of  his  debt. 
And  not  he  only,  but  all  the  other  creditors.     So  that  the  surety 
of  an  insolvent  debtor  is  to  be  overwhelmed,  because,  to  relieve 
his  friend  from  imprisonment,  he  is  his  surety  for  his  appear- 
ance.    He  may  be,  and  no  doubt,  universally,  sureties  become 
so,  because  they  know  their  principal  is  worth  nothing  or  little, 
and,  therefore,  they  can  be  very  slightly  injured  by  the  forfeit- 
ure of  the  appearance.     There  is-nothing  in  the  law  analogous 
to  this  doctrine.     For  with  regard  to  special  bail,  or  rather 
sureties  in  a  bail  bond,  the  presumption  is,  that  the  debtor  is 
able  to  pay  the  debt,  from  which  he  absconds.     But  it  is  other- 
wise with  respect  to  insolvent  debtors. 

3.  But  suppose  the  presumption  not   to   be  so  in  ordinary 
cases.     In  this  case  evidence  w^s  offered  and  rejected,  to  show 
actually  that  the  principal  had  nothing,  and,  therefore,  the 
creditor  could  have  recovered  nothing.     All  that  could  be  done 
was  to  imprison  him.     This  would  be  no  satisfaction  of  the 
debt,  but  merely  a  penalty  for  fraud.     Under  our  insolvent 
laws,  imprisonment  is  no  satisfaction  for  debts.     It  is  used  to 
coerce  debtors  to  give  up  their  property,  and  as  a  punishment 
for  fraud.     Here  the  proof  is,  that  the  debtor  had  given  up  all 
his  property,  oj  course,  all  that  could  be  done  would  be  to  im- 
prison him. 

VOL.  I.— 31. 


242         CASES  IN  THE  COURT  OF  APPEALS 

Morrow  vs.  The  State,  use  of  Israel — 1829. 

4.  If  there  was  such  a  privity  between  this  creditor  and  the 
obligors  in  the  bond,  that  being  forfeited,  he  could  sue  on  it. 
Still  if  he  was  not  actually  damnified,  he  was  only  entitled  to 
nominal  damages.  By  the  act  of  1821 ,  ch.  250,  provision  is  made 
for  the  enlargement  of  the  time  for  the  appearance  of  the 
debtor,  without  requiring  a  new  bond,  and  without  the  consent 
of  the  creditors.  What  then  becomes  of  the  old  bond?  5 
Johns.  Rep.  42.  9.  Johns.  Rep.  300.  10  Jo/ins.  Rep.  563.  2 
Johns.  Rep.  205. 

Meredith,  for  the  appellee. 

This  suit  was  brought  in  the  name  of  the  state,  for  the  use  of 
one  of  the  creditors  of  an  insolvent,  against  his  surety,  in  a  bond 
given  for  the  appearance  of  the  debtor,  in  pursuance  of  the  act 
of  1816,  chap.  221,  sec.  2. 

In  the  argument  on  the  part  of  the  appellant,  it  was  made  a 
question  whether  there  could  be  any  recovery  on  the  bond  in 
this  case,  since  there  is  no  specific  provision  in  any  part  of  the 
law  referred  to  for  taking  bonds  of  this  description  in  the  name 
of  the  State;  and  it  is  upon  this  question  alone  that  the  counsel 
for  the  appellee,  will  detain  the  court.  It  is  certainly  true,  that 
the  act  in  question  does  not  designate  the  obligee  in  these  bonds. 
After  providing  for  the  appointment  of  the  provisional  trustee, 
the  section  above  cited,  proceeds  to  direct,  "  that  the  Commis- 
sioners shall  take  bond,  with  security,  to  be  by  them  approved, 
for  the  appearance  of  such  insolvent,  to  answer  such  interroga- 
tories as  may  be  propounded  to  him  by  any  of  his  creditors,  or 
such  allegations  as  may  be  filed  against  him,  within  the  time 
hereinafter  mentioned."  But,  in  the  similar  provision,  which  is 
to  be  found  in  the  acts  of  1805,  ch.  1 10,  sec.  11;  1807,  ch.  150,  sec. 
3;  1808,  ch.  71,  sec.  2;  and  1817,  ch.  183,  sec.  1,  there  is  no  more 
particular  designation  of  the  obligee,  than  in  the  act  of  1816; 
and  yet  the  invariable  practice  has  been  from  the  passage  of 
the  first  general  insolvent  law  in  1805,  to  the  present  period,  to 
take  the  appearance  bonds  of  insolvent  debtors  in  the  name  of 
the  State,  and  the  legality  of  doing  so,  it  is  believed,  has  never 
before  been  questioned.  A  construction,  therefore,  thus  given 


OF  MARYLAND.  243 


Morrow  vs.  The  State,  use  of  Israel. — 1829. 


by  the  courts  throughout  the  State,  and  uniformly  acted  upon 
for  upwards  of  twenty  years,  in  the  innumerable  cases  which 
have  arisen  under  the  insolvent  law,  should  not  be  disturbed 
but  for  the  strongest  and  most  unanswerable  reasons.  Where 
the  interpretation  of  a  law  is  doubtful,  the  exposition  given  to  it 
immediately  after  its  passage,  when  the  intention  of  the  Legis- 
lature is  more  certainly  ascertained  than  at  a  later  period,  is 
entitled  to  great  consideration,  and  generally  is  deemed  deci- 
sive. Contemporanea  expositio  est  fortissimo,  in  kge.  6  Bac. 
Jib.  385.  Again,  it  is  a  rule  in  the  construction  of  statutes  that 
such  an  interpretation  ought  to  be  given  as  will  prevent  the 
object  of  the  law  from  being  defeated.  1 5  Johns.  Rep.  358. 
If  the  objection  to  the  bond  in  this  case  is  a  valid  one,  it  is  ma- 
nifest that  the  provision  which  the  Legislature  intended  for  the 
security  of  creditors  is  rendered  wholly  inoperative.  For  if  the 
bond  cannot  be  rightly  taken  in  the  name  of  the  State,  because 
it  is  not  so  specifically  directed,  it  cannot  for  precisely  the  same 
reason  be  taken  in  the  name  of  any  other  obligee.  And  thus 
creditors  are  left  without  any  security  whatever,  and  the  inten- 
tion of  the  Legislature,  which  is  obviously  to  substitute  the  ap- 
pearance bond  in  the  place  of  special  bail,  is  completely  frus- 
trated. Legislative  intention  is  often  resorted  to,  to  explain 
the  meaning  of  laws.  15  Johns.  Rep.  358.  That  intention  may 
be  collected  from  other  provisions  in  the  same  law,  and  look- 
ing to  the  provision  with  regard  to  the  trustees  bond,  which  is 
expressly  directed  to  be  taken  in  the  name  of  the  State  by  the 
act  of  1805,  it  would  seem  that  the  Legislature  must  have  in- 
tended that  the  appearance  borid  should  also  be  given  to  the 
State,  or  they  would  have  otherwise  directed.  Why  should  the 
one  be  taken  in  the  name  of  the  State  and  not  the  other?  They 
are  both  for  the  security  of  creditors;  the  State,  is  not  interest- 
ed, but  selected  merely  as  a  safe  and  permanent  trustee  for 
their  benefit.  Having  once  mentioned  the  form  of  a  bond,  it 
was  not  thought  necessary  to  repeat  it.  And  it  may  be  remark- 
ed, that  in  the  act  of  1808,  ch.  71,  sec.  3,  where  both  the  trus- 
tees bond,  and  the  appearance  bond  are  mentioned,  there  is  no 
specific  direction  as  to  either,  with  regard  to  the  obligee;  and 


,'  1 1    CASES  IN  THE  COURT  OF  APPEALS 

Chamberlain  vs.  The  State,  use  of  Keiler. — 1829. 

yet  it  will  scarcely  be  doubted,  that  a  trustees'  bond  is  under 
this  law,  which  is  the  last  upon  the  subject,  properly  and  le- 
gally given  in  the  name  of  the  State.  If,  however,  the  bond  in 
this  case  is  not  considered  as  being  authorised  by  the  act  of 
1816,  in  connexion  with  the  preceding  insolvent  laws,  the  ap- 
pellee insists  that  it  is  still  a  good  bond  at  common  law,  and  that 
the  State  ought  to  be  regarded  as  a  trustee  for  the  creditors,  for 
whose  benefit  it  was  intended.  This  principle  will  be  found  to 
have  been  repeatedly  settled  in  England  and  this  country.  The 
court,  however,  is  particularly  referred  to.  2  Strange,  1137. 
12  Mass.  Rep.  367.  Mdison>s  (Perm.)  Rep.  72,  84.  That 
creditors  may  sue  upon  bonds  of  this  description,  notwithstand- 
ing there  is  no  particular  provision  to  that  effect  in  the  law  un- 
der which  they  are  given,  the  court  is  also  referred  to  4  Doll. 
Rep.  95.  5  Mass.  Rep.  91,  and  M'Mechenvs.  The  May  or,  #c. 
of  Baltimore,  3  Harr.  &f  Johns.  534.  See  also  1  Binney's  Rep. 
370,  as  to  the  priority  of  those  who  first  sue  on  official  bonds,  tyc. 

CHAMBERLAIN  vs-  THE  STATE,  use  of  KIELER.  This  third  case 
was  an  appeal  from  Frederick  County  Court,  and  also  an  action 
of  debt  on  a  writing  obligatory  entered  into  on  the  24th  of  June, 
1818,  by  the  defendant,  (now  appellant,)  with  David  Wagner  and 
John  Gilbert  as  his  sureties,  to  the  State  in  the  penalty  of  $1000, 
and  conditioned  for  the  appearance  of  the  defendant  in  Frede- 
rick County  Court  on  the  first  Monday  of  November  then  next, 
to  answer  the  allegations  of  his  creditors  according  to  the  pro- 
visions of  an  act  of  Assembly,  entitled,  "an  act  for  the  relief 
of  sundry  insolvent  debtors,  passed  at  November  session,  1805, 
and  the  supplements  thereto,"  and  shall  not  depart  the  said  court 
without  the  leave  thereof.  The  defendant  pleaded. — 1.  That 
the  action  ought  not  to  be  maintained,  &c.  because  no  creditor 
or  creditors  of  the  defendant  at  any  time  from  the  time  of  the 
making  the  said  writing  obligatory  to  the  time  of  the  com- 
mencement of  this  suit,  made  any  allegation  or  allegations  in 
Frederick  County  Court  against  the  defendant,  according  to  the 
provisions  of  the  act,  entitled,  &c.  or  the  supplements  thereto,  or 
any  of  them ;  and  this  he  is  ready  to  verify,  &c.  2.  That  the 


OF  MARYLAND.  245 


Chamberlain  vs.  The  State,  use  of  Keiler. — 1829. 

action  ought  not  to  be  maintained  for  the  use  of  George  Keiler, 
because  the  said  Keiler  did  not  at  any  time  from  the  making  of 
the  writing  obligatory  aforesaid,  to  the  commencement  of  this 
suit,  make  any  allegation  or  allegations  in  Frederick  County 
Court  against  the  defendant,  according  to  the  provisions  of  the 
act  of  Assembly,  entitled,  Sac.  or  of  the  supplements  thereto, 
or  any  of  them;  and  this  he  is  ready  to  verify,  &c.  3.  That 
the  defendant  did  make  his  personal  appearance  in  Frederick 
County  Court  on  the  first  Monday  of  November  next  ensuing, 
the  date  of  the  said  writing  obligatory,  to  answer  the  allega- 
tions of  his  creditors,  according  to  the  provisions  of  the  act, 
&c.  and  did  not  depart  the  said  court  without  the  leave  thereof; 
and  this  he  is  ready  to  verify,  &c.  To  the  first  and  second 
pleas  there  were  general  demurrers.  To  the  third  plea,  a  re- 
plication that  the  defendant  did  not  make  his  personal  appear- 
ance, &c.  And  that  George  Keiler  was  a  creditor  of  the 
defendant  to  the  amount  of  $61  96.  Issue  tendered  and  join- 
ed. The  County  Court  ruled  good  the  demurrers  to  the  first 
and  second  pleas.  Verdict  on  the  issue  to  the  replication  to 
the  third  plea  for  the  plaintiff.  Judgment  on  the  verdict,  and 
the  defendant  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch  J.  and  EARLE, 
ARCHER  and  DORSEY,  J. 

Taney  (Attorney  General  of  Maryland,)  and  Ross,  for  the 
appellant. 

The  act  for  the  relief  of  insolvent  debtors,  1805,  ch.  110, 
and  its  several  supplements,  have  for  their  object,  the  relief  of 
insolvent  debtors  who  comply  with  the  provisions  of  those  acts. 
The  bond  required  by  those  acts  (vide  the  act  of  1807,  ch.  150, 
sec.  3,)  manifestly  shews  that  the  condition  of  the  bond  was,  to 
answer  allegations  if  filed,  but  not  to  make  the  debtor  and  his 
securities  answerable  to  creditors  who  had  no  allegations  to 
make  against  the  debtor.  If  the  insolvent  was  a  delinquent, 
and  against  whom  the  creditors  thought  they  had  a  right  to 
complain,  and  did  complain  in  the  form  of  allegations,  then  the 
condition  of  the  bond  was  forfeited  by  the  non-attendance  of 


CASES  IN  THE  COURT  OF  APPEALS 

Kiersti.l.  .M.  trow  and  Chambcrluin  vs.  The  State,  &c — 1829. 

the  insolvent  debtor.  As  no  allegations  were  filed  in  this  case, 
it  is  proof  that  the  insolvent  debtor  fully  complied  with  the 
provisions  of  the  insolvent  laws;  lor  it  was  not  necessary,  to 
enable  the  creditors  to  file  allegations,  that  the  insolvent  debtor 
should  be  present.  The  condition  of  his  bond  was,  to  answer 
the  allegations  of  his  creditors,  but  if  they  have  no  allegations 
to  make,  or  if  they  had,  and  made  none,  how  can  they  derive 
a  right  for  the  non-performance  of  a  condition,  the  breach  of 
which  was  attended  with  no  loss  to  them,  nor  invaded  any  of 
their  statutory  rights  ?  To  enable  the  creditors  to  recover  on 
the  insolvent  debtors'  bond,  they  must  show  they  filed  allega- 
tions against  the  petitioning  debtor,  and  that  he  did  not  person- 
ally appear  to  answer  those  allegations  as  the  condition  of  his 
bond  required  him  to  do. 

Pieman,  for  the  appellee.  By  the  argument  of  the  appel- 
lant's counsel,  it  appears  that  the  appellant  contends  that  he  is 
not  liable  to  any  creditor  on  bis  insolvent  bond,  as  no  allega- 
tions were  filed  against  him.  Now  it  is  evident  it  was  the  in- 
tention of  the  act  of  Assembly,  that  the  appearance  of  the  in- 
solvent should  precede  the  filing  allegations.  The  allegations 
are  pleadings  and  could  not  be  filed  so  as  to  call  on  Chamber- 
lain to  join  issue  until  he  was  in  court.  The  proper  authority 
discharged  him  out  of  custody  upon  his  bond  to  appear  to 
answer  allegations,  evidently  to  come  into  court  first,  to  enable 
the  creditors  to  file  allegations.  If  the  words  of  the  act  of  As- 
sembly are  particularly  attended  to,  this  will  appear  clearly  to 
be  the  proper  construction;  and  this  construction  the  court 
below  gave  the  words  of  the  act  of  Assembly.  It  appears  in 
the  record  that  Chamberlain  did  not  appear;  of  course,  the 
condition  of  his  bond  was  broken. 

EARLE,  J.  delivered  the  opinion  of  the  court,  in  the  three 
preceding  cases. 

We  propose  to  give  a  condensed  view  of  these  cases,  and  to 
decide  them  together.  For  although  their  pleadings  are  a  little 
variant  from  each  other,  they  have  all  originated  in  the  same 


OF  MARYLAND.  *      247 


Kiersted,  Morrow  and  Chamberlain  vs.  The  State,  &c. — 1829. 

kind  of  cause  of  action,  and  the  principal  questions  presented 
by  them  on  the  argument  are  the  same. 

They  are  suits  upon  obligations  given  by  insolvents  to  the 
State,  conditioned  to  appear  at  certain  times  and  p'aces.  to  an- 
swer the  interrogatories  and  allegations  of  their  creditors,  to  be 
filed  against  them,  which  in  each  court  were  decided  adversely 
to  the  obligors. 

The  first  and  chief  question,  arising  out  of  them  is  a  conside- 
ration whether  actions  can  be  maintained  on  these  obligations, 
inasmuch  as  they  have  been  taken  in  the  name  of  the  State  of 
Maryland,  and  no  express  authority  is  given  by  law  so  to  take 
them. 

The  act  of  1805,  ch.  110,  is  the  first  general  insolvent  law 
enacted,  in  this  State,  to  which  there  have  been  many  supple- 
ments; and  since  then  various  insolvent  acts  to  suit  the  situation 
of  the  city  and  county  of  Baltimore,  have  been  passed.  All 
have  been  examined  by  the  court,  as  well  as  some  in  favour  of 
individuals,  before  and  since  1805.  In  none  of  those  acts  is  \ 
there  any  specific  provision  for  taking  these  bonds  of  the  insol- 
vents in  the  name  of  the  State,  although  by  the  act  of  1805, 
and  several  other  acts,  the  courts,  judges  and  commissioners, 
are  to  take  of  the  imprisoned  debtors,  at  the  time  of  their  dis- 
charge, bonds  conditioned  for  their  appearance  to  answer  the 
allegations  of  their  creditors,  in  penalties  to  be  prescribed,  and 
with  security  to  be  approved  of  by  them.  Notwithstanding  the 
manner  of  taking  these  bonds,  is  no  where  specifically  directed*, 
we  are  assured,  upon  full  inquiry,  that  they  have  been  invariably 
passed  to  the  State  of  Maryland,  for  more  than  twenty  years 
past,  whether  taken  by  the  courts,  the  judges,  or  the  Commis- 
sioners of  Insolvent  Debtors  for  the  city  and  county  of  Balti- 
more. What  has  produced  this  uniformity,  it  is  not  easy  to  say, 
unless  it  has  been  brought  about  by  implicitly  following  the 
example  of  the  courts  and  judges,  upon  whom  it  first  devolved 
to  execute  these  acts  of  Assembly.  As  no  person  was  desig- 
nated, in  whose  name  the  bonds  were  to  be  given,  it  is  probable 
the  courts  and  judges  were  prompted  to  the  course  pursued  by 
the  consideration,  that  the  law  in  this  particular  could  not  be 


CASES  IN  THE  COURT  OF  APPEALS 

Kiersted,  Morrow  and  Chamberlain  rs.  The  State,  &c — 1829. 

executed,  without  an  obligee  was  supplied  by  them,  and  by 
reflecting,  that  for  permanency  and  convenience,  none  could  be 
selected,  more  suitable  than  the  State  itself,  to  which  all  official 
bonds  were  given,  and  other  kinds  of  bonds,  where  a  multiplicity 
of  persons  are  concerned.  And  it  may  be,  that  they  were 
conducted  to  this  resolution,  by  reasoning  upon  the  supposed 
intention  of  the  Legislature,  that  these  bonds  should  be  taken  in 
the  name  of  the  State,  from  the  fourth  section  of  the  act  of  1805, 
c/i.  1 10,  which  directs  the  trustees  of  insolvents  to  give  bond  to 
the  State.  Whatever  may  have  led  to  the  practice,  its  consis- 
tency fully  establishes  the  cotemporaneous  construction  of  the 
first  act,  in  this  system  of  laws,  and  we  think  it  has  too  long 
obtained,  to  be  at  this  time  shaken  and  disturbed.  And  we 
further  think,  that  to  promote  the  execution  of  similar  legis- 
lative provisions,  it  may  be  well  received  as  a  settled  rule 
for  the  government  of  our  courts  of  justice,  that  obligations  in 
which  many  persons  are  interested,  be  taken  in  the  name  of 
the  State  of  Maryland,  whenever  the  law  is  silent  in  naming  the 
obligees  to  whom  they  are  to  be  given. 

Another  question  insisted  on  by  the  appellants  in  the  argument 
of  this  cause  is,  whether  the  appellees  could  sue  these  bonds 
for  their  use,  there  being  no  provision  in  any  of  the  insolvent 
acts,  to  enable  them  thus  to  sue.  This  point  we  consider  settled 
in  this  court,  by  the  cases  of  McMechen  vs.  The  Mayor  and 
City  Council  of  Baltimore,  use  of  A.  Storey,  and  McMechen  vs. 
The  Mayor  and  City  Council  of  Baltimore,  use  of  Hollingsworlh, 
fy  Williams,  2  Harr.  &f  Johns.  41,  and  3  Harr.  fy  Johns.  534. 
They  were  suits  on  an  auctioneer's  bond,  taken  under  an  ordi- 
nance of  the  city,  which  did  not  authorise  any  person,  in  parti- 
cular, to  sue  it.  They  were  nevertheless  sustained,  and  the 
judgment  of  the  County  Court  therein,  affirmed  by  this  court. 

A  still  further  question  was  moved  on  the  argument  of  this 
case,  by  the  appellant's  counsel.  They  contended,  that  if  those 
obligations  were  liable  to  be  sued  by  the  appellees,  nothing 
could  be  recovered  by  them  but  nominal  damages.  Upon  this 
subject,  we  are  of  opinion,  there  is  very  little  room  for  doubt. 
In  directing  these  bonds  to  be  taken,  the  Legislature  must  have 


OF  MARYLAND.  249 


Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 


had  in  view  the  interest  of  the  creditors  of  the  insolvents,  and 
not  merely  to  authorise  them  to  sue,  to  run  the  insolvents  and 
their  securities,  to  useless  costs.  To  give  them  additional 
security  for  their  debts,  by  obliging  the  insolvents  to  enter  into 
stipulations,  in  nature  of  bail  bonds,  was  the  object;  and  the 
amount  of  their  individual  demands,  we  should  think,  must  be 
the  measure  of  the  damages  to  be  recovered  by  them  respec- 
tively. These  cases  were  partly  argued  upon  notes,  'which 
were  not  filed  until  the  close  of  the  last  term,  and  could  not 
have  been  earlier  disposed  of  by  us.  They  appear  to  have 
been  properly  decided  in  every  respect,  by  the  County  Courts, 
and  we  affirm  their  judgments,  concurring  with  them  in  the 
opinions  expressed  on  the  exceptions,  in  the  two  first,  and  on 
the  demurrers  in  the  last  case. 

JUDGMENTS  AFFIRMED. 


GIRAUD'S  Lessee  vs.  HUGHES,  et  al. — December,  1829. 

It  is  true  as  a  general  principle,  that  the  lines  of  a  tract  of  land  originally 
run  by  course  and  distance,  without  calls,  must  be  confined  to  the  course 
and  distance,  and  cannot  be  extended  beyond  them. 

Where  a  tract  of  land  lies  adjacent  or  contiguous  to  a  navigable  river,  or  wa- 
ter, any  increase  of  the  soil,  formed  by  the  water  gradually,  or  impercepti- 
bly receding,  or  any  gain  by  alluvion  in  the  same  manner,  shall,  as  a  com- 
pensation for  what  it  may  lose  in  other  respects,  belong  to  the  proprietor  of 
the  adjacent  or  contiguous  land.  It  is  not  upon  the  principle  that  the  land 
calls  for  the  water,  but,  because  if'adjoins  the  water,  that  the  owner  ac- 
quires a  title  to  the  soil  so  formed./ 

In  ejectment  it  appeared  that  the  land  for  which  the  action  was  brought,  and 
which  had  been  recently  patented  as  vacant  land,  had  been  formed  by  the 
gradual  recess  of  the  waters  on  the  shores  of  the  river  Patapsco  ;  and  that 
another  tract  of  land  the  lines  of  which  ran  into,  though  they  did  not  call 
for  the  water,  where  the  recession  took  place,  had  been  patented  many 
years  before.  The  defendant  claiming  title  under  the  grant  of  this  last 
tract,  HELD  that  the  action  could  not  be  sustained. 

The  Port  Wardens  of  Baltimore  by  the  act  of  1783,  ch.  24,  were  authorised  to 
grant  permissions  to  make  wharves,  but  in  order  to  vesta  title  in  any  such 
wharf,  it  is  essential  by  the  provisions  of  the  act  of  1745,  ch.  9,  sec.  10,  that 
the  grantee  should  have  completed  it  according  to  his  permission. 

VOL.  I.— 32. 


CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  »».  Hughes,  et  <tl — 1829. 

APPEAL  from  Baltimore  County  Court.  Ejectment  for  a  tract 
of  land  called .  Ii/^iiylits's  Discovery  Rcsurveyed.  The  defendants 
(now  appellees)  took  defence  on  warrant,  and  plots  were  return- 
ed. Not  guilty  was  pleaded  and  issue  joined.  The  plaintiff 
made  claim  and  pretension  for  all  that  tract  or  parcel  of  land, 
called  Augustus's  Discovery  Resurveyed,  as  located  on  the  plots. 
The  defence  was  taken  under  the  patent  of  a  tract  of  land, 
called  Gist's  Inspection,  and  for  certain  land  lying  between  the 
9th  and  10th  lines  of  said  tract,  as  originally  surveyed,  and  the 
present  shores  of  the  river  Patapsco,  which  land  was  covered  hy 
the  plaintiff's  claim.  This  action  was  originally  instituted 
against  Christopher  Hughes,  and  upon  his  death,  his  heirs  at  law, 
the  present  appellees,  were  made  defendants. 

The  plots  returned  and  filed  in  this  cause,  showed  that  the 
9th  and  10th  lines  of  Gist's  Inspection,  (being  on  the  N.  E. 
corner,  and  Eastern  side  of  said  tract)  according  to  their  original 
location,  run  into  the  water  of  the  river  Patapsco: — That  the 
part  of  said  tract  conveyed  by  J.  M.  Porter  to  Christopher 
Hughes,  was  also  adjacent  to  the  water,  and  of,  the  JYorthern  and 
Eastern  parts  of  the  whole  tract : — That  the  part  of  C.  Hughes' 
purchase  which  he  conveyed  to  Leonard  Harbaugh,  was  in  fact 
bounded  by  the  waters  of  the  Patapsco  on  the  N.  and  E.,  by 
Montgomery  street  on  the  south,  and  by  Hughes'  purchase  from 
Porter  on  the  West : — That  a  certain  permission  which  the  Port 
Wardens  of  Baltimore  in  the  year  1786,  granted  to  Leonard 
Harbaugh  to  make  a  wharf,  commenced  to  the  N.  and  W.  of  his 
purchase  from  Hughes  (at  the  beginning  of  Hughes'  purchase 
from  Porter,  and  at  the  East  side  of  Henry  street)  and  ex- 
tended from  such  beginning,   first  N.  then  E.  (being  to  the 
North  of  one  of  the  lines  of  the  lot  which  C.  Hughes  then 
owned,  and  extending  nearly  parallel  with  and  along  its  whole 
Northern  front  on  the  river)  then  South,  and  then  West,  until 
it  reached  the  shores  of  the  Patapsco  at  the  S.  E.  corner  of 
Harbaugh's  lot,  and   the   intersection  North  side  of  Mont- 
gomery street  with  the  water: — that  the  said  wharf,  as  far  as 
actually  constructed,  did  not  include  more  of  the  shores  of 
the  Patapsco  than  were  immediately  adjacent  to  the  water  lines 


OF  MARYLAND.  251 


Giraud's  Lessee  vs.  Hughes,  et-al — 1829. 


of  Harbaugh's  lot,  purchased  from  Hughes;  and  was  much  less 
extensive  than  the  permission  from  the  Port  Wardens,  not  ex- 
tending either  so  far  North  or  West  as  the  lines  of  that  permis- 
sion purported  to  authorise : — That  the  tract  of  land  call- 
ed Augustus's  Discovery  Resurveyed,  lay  to  the  N.  and  E.  of  the 
9th  and  10th  lines  of  Gist's  Inspection,  and  clear  of  those  lines 
and  clear  of  that  tract  as  originally  run  according  to  the  courses 
and  distances  of  the  patent — that  Augustuses  Discovery  Resurvey- 
ed, covered  a  considerable  part  of  the  space,  included  in  the 
lines  of  the  permission  of  the  Port  Wardens  to  Harbaugh — That 
the  shores  of  the  river  Palapsco,  when  the  action  was  brought, 
ran  along  those  outlines  of  Augustuses  Discovery  Resurveyed, 
which  are  adjacent  to  the  water — and  that  the  shores  of  the 
said  river  had  in  fact  been  extended  _from  West  to  East,  the 
distance  from  the  East  outlines  of  Gisfs  Inspection,  to  the  East 
outlines  of  Augustuses  Discovery  Resurveyed,  since  Gist 's  Inspec- 
tion was  originally  surveyed. 

1.  At  the  trial  the  plaintiff  gave  in  evidence  a  patent  to  himself 
for  the  tract  claimed  by  him,  dated  in  1 81 3,  and  proved  its  location 
on  the  plots,  to  be  correct — and  he  also  proved  that  Augustuses 
Discovery  Resurveyed,  according  to  its  true  location,  ran  clear  of 
the  original  lines  of  Gz'sf's  Inspection,  which  was  the  elder  tract. 
And  that  the  tenth  line  of  Gist's  Inspection,  mentioned  and  call- 
ed for  in  the  said  patents,  was  correctly  located  on  the  said 
plots — that  the  beginning  of  a  tract  of  land  called  Augustuses 
Discovery,  was  correctly  located,  and  that  the  beginning  of  the 
tract  of  land  called  Augustuses,  Discovery  Resurveyed,  was  also 
correctly  located,  and  that  the  beginning  of  both  of  the  said 
tracts  is  in  the  said  tenth  line  of  Gist's  Inspection. '  And  he  also 
offered  in  evidence  a  patent  for  the  tract  of  land  called  GisJ's 
Inspection,  bearing  date  on  the  9th  of  July,  1732,  which  con- 
tained no  call  for  the  waters  of  the  Patapsco — that  it  is  correct- 
ly located — and  that  Montgomery  street  is  correctly  located 
upon  the  plots.  The  defendants  then  proved  that  one  John 
Mercer  Porter,  on  the  6th  of  June,  1782,  was  seized  in  fee 
simple  of  the  said  tract  of  land  called  Gist's  Inspection, 
at  which  time  he  conveyed  to  ChristopJier  Hughes  part  of  the 


255         CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  es.  Hughes,  et  al — 1829. 

said  land,  the  lines  of  which  part  on  the  north  and  east  sides, 
in  fact,  ran  into  the  river  Patapsco,  and  offered  evidence  that 
the  same  is  truly  located — and  also  gave  evidence,  that  the 
said  Hughes  took   possession  under  said   deed  of  the  land 
so  convoyed  to  him.     The  plaintiff  then  read  in  evidence  a 
lease  from  said  Hughes  to  one  Leonard  Harbaugh,  for  part 
of  the   said  Hughes,   the   defendants  purchase,  from  Porter, 
lying  adjacent  to  the  water  on  the  north-east  and  eastern  lines 
thereof,  leaving  the  said  Hughes,  however,  one  line  on  the  north 
side  of  his  lot  purchased  from  Porter,  adjacent  to  the  shores  of 
the  river  Patapsco — And  that  the  said  Harbaugh,  in  the  year 
1786  or  1787,  commenced  the  building  of  a  wharf  at  the  said 
lot,  and  continued  working  at  the  same  till  the  year  1 789,  when 
he  quit  working  there,  and  abandoned  the  property;  and  that 
said  Hughes  then  took  possession  of  the  same,  and  by  himself, 
his  tenants,  and  the  defendants  his  heirs  at  law,  have  held  it 
ever  since;  and  that  the  said  Harbaugh  had  laid  and  extended 
the  logs  of  said  wharf  as  the  same  are  located  on  the  plots,  and 
had  the  same  filled  up  in  the  middle  and  north  side  thereof, 
and  partly  so  on  the  east  and  south  part  of  the  same;  that  the 
logs  of  said  wharf,  so  made,  have  by  injuries  and  decay  in 
several  parts,  fallen  down,  (the  top  log  entirely  around,)  and 
have  not  been  repaired  since;   that  part  of  the  ground  filled 
up  within  said  logs,  has  been,  and  still  is  used  and  occupied 
as  a  Distillery  of  Turpentine,   and  that  the  water  flows  all 
around  over  the  logs  of  said  wharf,  and  within  the  same  from 
ten  to  twenty  feet  according  to  the  state  of  the  tides.     The  de- 
fendants then  offered  evidence  by  William  Patterson  and  Sam- 
uel Smith,  witnesses  sworn  and  examined,  that  they  were  mem- 
bers of  the  Board  of  Wardens  for  the  port  of  Baltimore  Town, 
in  the  years  1785  and  1786,  and  for  some  time  after — that  all  the 
other  members  of  the  said  board,  at  that  time,  as  also  their  then 
clerk,  are  since  dead.     That  the  said  board  had,  at  that  time,  a 
common  seal,  which  had  been  adopted,  and  was  used  by  the 
said  board,  that  it  was  the  general  custom  and  practice  of  the 
board,  to  direct  and  have  their  official  acts  or  proceedings, 
when  given  out  to  individuals,  regularly  signed  and  attested 


OF  MARYLAND.  253 


Giraud's  Lessee  vs.  Hughes,  et  al — 1829. 


under  the  seal  aforesaid,  that  they  have  no  knowledge  what  has 
become  of  the  said  seal,  or  whether  it  is  in  being  at  this  time  or 
not.  And  also  offered  evidence  by  John  Purviance,  Esq.  that 
he  was  clerk  to  said  Board  of  Wardens  in  the  year  1795,  and 
for  some  time  previous;  that  the  said  Board,  during  the  time  of  his 
being  clerk,  had  and  used  a  common  seal  to  attest  their  official 
acts  and  proceedings,  which  he  understood  and  believed  to  be 
the  same  which  the  Board  first  adopted.  That  when  he  re- 
signed his  clerkship,  the  said  seal,  with  the  books  and  papers  of 
the  Board,  were  given  over  to  his  successor — And  also  proved 
by  the  same  witness  that  one  Samuel  Vincent,  who  is  now  de- 
ceased, was  the  last  clerk  to  the  said  Board,  whose  powrers  ceased 
in  the  year  1797,  when  the  act  incorporating  the  Mayor  and  City 
Council  of  Baltimore,  went  into  effect  and  operation.  And  also 
proved  by  the  same  witness,  that  Richard  JMoale,  who  was  the 
first  Register,  and  James  Calhoun,  wrho  was  the  first  Mayor, 
have  both  been  dead  several  years.  And  also  offered  in  evi- 
dence by  Emanuel  Kent,  examined  as  a  witnes^,  that  he  is  and 
has  been,  for  about  two  years  past,  the  Register  of  the  City  of 
Baltimore,  and  as  such  Register  it  belongs  to  him  to  have  the 
care  and  keeping  of  the  public  books,  papers  and  proceedings 
of  or  belonging  to  the  Mayor  and  City  Council  of  Baltimore,  and 
also  those  of  the  former  Boards  of  Commissioners  of  Baltimore 
Town;  the  special  Commissioners  and  Wardens  of  the  port  of 
Baltimore  Town,  and  the  seals  of  the  said  Commissioners,  if  any 
are  in  being.  That  he  has  no  knowledge  of  the  seal  used  by 
said  Board  of  Wardens — that  he  hath  never  seen  it — that  he 
hath  enquired  and  examined  fpr  the  said  seal  in  his  office,  and  it 
cannot  be  found  there  or  any  where  else,  that  he  knows  of,  and 
also  proved  by  the  said  witness,  that  a  book  which  he  now  pro- 
duces, came  into  his  care  and  keeping  as  Register,  when  ap- 
pointed, from  his  predecessor  in  office,  and  is  one  of  the  public 
books  of  the  Mayor  and  City  Council  of  Baltimore,  and  is  by  him 
believed  and  considered  to  be  what  it  purports  to  be,  a  book 
containing  the  proceedings  of  the  former  Board  of  Wardens  of 
the  port  of  Baltimore  Town.  And  also  proved  by  the  said  wit- 
nesses, Patterson,  Smith  and  Purviance,  that  the  said  book  is  the 


•>.-.!          CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 

original  book  that  was  kept  by  the  said  Board  of  Wardens,  in 
which  were  made  and  contained  minutes  and  entries  of  their  acts 
and  proceedings.  And  also  proved  by  John  Eager  Howard,  that 
the  said  Leonard  Harbaitgh  removed  from  the  State  of  Maryland 
to  the  City  of  Washington,  in  the  year  1791,  where  he  resided 
until  his  death,  two  years  or  more  since,  except  about  two  years 
whilst  he  was  in  Frederick  county,  and  for  a  short  time  in  Bal- 
timore, and  returned  to  Washington.  The  defendants  then  of- 
fered to  read  in  evidence  the  following  entries  made  in  the  said 
book,  to  wit:  "jAt  a  meeting  of  the  Wardens  of  the  Port  of 
Baltimore,  July  5th,  1785,  present  Samuel  Smith,  Richard  Ridg- 
ley,  John  Sterett,  William  Patterson,  Samuel  Purviance,  Chair- 
man— the  board  received  the  application  of  Mr.  Leonard  Har- 
baugh  for  permission  to  extend  a  wharf  on  Luns'  Point,  accor- 
ding to  the  plan  annexed  to  his  petition,  which  was  read  and  or- 
dered to  lie  for  further  consideration."  "  At  a  meeting  of  the 
Board  of  Wardens  for  the  Port  of  Baltimore,  September  28, 
1786,  present  Samtiel  Purviance,  William  Patterson,  Samuel 
Smith,  Thomas  Russell,  Thomas  Elliot,  Daniel  Bowly,  the 
board  having  taken  into  consideration  the  application  of  Leonard 
Harbaugh,  for  extending  his  wharf  on  Luns"1  Point,  agree  that 
he  be  permitted  to  extend  the  same  to  the  following  courses  and 
lines  laid  down  as  limits,  viz :  Beginning  at  a  stone  set  up  at 
the  present  waters  edge  at  the  east  side  of  Henry  street,  mark- 
ed C,  H,  No.  45,  and  running  north  two  degrees,  west  eight 
perches,  then  north  eighty-eight  degrees,  east  twenty-eight 
perches,  then  south  fifty-six  degrees  thirty  minutes,  east  ten 
perches  and  one  quarter  of  a  perch,  thence  south  thirty-nine 
degrees  forty  minutes,  cast  ten  perches  and  one  quarter  of  a 
perch,  thence  south  twenty-three  degrees,  east  ten  perches  and 
one  quarter  of  a  perch,  thence  south  ten  degrees  fifteen  min- 
utes, east  five  perches  and  a  half  a  perch,  thence  south  eighty- 
eight  degrees,  west  parallel  with  the  second  line  until  it  intersects 
the  shore  on  the  north  side  of  Montgomery  street, — ordered  that 
permission  be  granted  accordingly," — As  the  best  evidence  now 
to  be  had  of  the  matters  set  forth  and  contained  in  the  said  en- 
tries, and  for  the  purpose  with  the  other  evidence  of  the  better 


OF  MARYLAND.  255 


Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 


enabling  and  authorising  the  jury  to  presume  and  find  that  per- 
mission as  stated  in  said  last  entry,  had  been  in  due  form  of  law 
granted  by  the  said  board  to  said  Harbaugh,  to  build  a  wharf  as 
therein  stated — And  also  proved  that  the  lines  of  the  permission 
in  the  said  entry  mentioned  are  truly  located  on  the  plots.  The 
plaintiff  objected  to  the  admission  of  the  said  entries  in  the  said 
books  as  evidence,  and  did  also  object  to  the  admission  of  all 
the  said  parol  evidence  about  the  said  seal,  and  did  then  and 
there  assert  before  the  court,  that  the  said  evidence  was  not 
proper  to  go  to  the  jury.  But  the  said  court  [HANSON  and 
WARD,  A.  J.]  did  then  and  there  declare  and  deliver  their  opin- 
ion that  the  said  evidence,  on  the  part  of  the  defendants,  ought 
to  be  admitted,  and  did  permit  and  suffer  the  same  to  go  to  the 
jury.  The  plaintiff  excepted. 

2.  The  plaintiff  in  addition  to  the  matters  contained  in  the 
first  bill  of  exceptions,  further  offered  in  evidence,  a  verdict 
and  judgment  rendered  between  the  same  parties  in  this  court  at 
the  present  term  for  a  part  of  the  hereinbefore  mentioned  tract 
or  parcel  of  land  called  Gist's  Inspection.  The  defendants  then 
in  addition  to  the  matters  before  offered  in  evidence  by  them, 
proved  that  from  fifty  to  fifty-five  years  ago,  the  shore  of  the 
basin  of  Baltimore,  passed  at  common  tides  as  located  on  the 
plots  in  this  cause,  in  the  most  western  position  of  said  shore, 
from  a  small  plank  enclosure  on  the  south  side  of  Montgomery 
street,  standing  at  the  east  end  of  a  brick  distillery  of  the  lessor 
of  the  plaintiff,  and  running  thence  northwardly  near  a  pump 
now  standing,  and  thence  passing  between  two  stones  on  the 
north  side  of  Hughes  street,  at /the  intersection  or  corner  of  that 
street  and  Leonard  street,  which  several  objects  were  pointed 
out  by  the  witnesses  to  the  surveyor  in  making  the  survey  in  this 
cause.  And  they  also  proved  by  a  certain  (  Gould)  that  he  when  a 
boy,  had  paddled  about  in  a  canoe  on  the  shoal  water  of  the  said 
basin,  at  or  near  where  said  pump  now  stands.  It  was  then  ad- 
mitted by  the  parties,  "that  the  several  water  lines  or  shores  lo- 
cated by  either  party  in  this  cause,  show  and  designate  where 
the  tide  water  of  the  Patapsco  river  or  basin  of  Baltimore  flowed  at 
different  periods  of  time,  receding  gradually  caslwardly  to  wJiere 


256          CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  t».  Hughes,  et  al — 1829. 

the  same  now  are  shown  by  the  most  eastward  location  thereof, 
on  the  plots,  and  (hat  the  lines  of  Gist's  Inspection  when  the 
same  was  granted,  including  part  of  the  sixth  line  thereof,  from 
the  end  of  said  line,  ran  into  the  water  of  the  Patapsco  or  hasin 
of  Baltimore  Town,  to  the  end  of  the  tenth  line  thereof;  and  that 
the  above  lines  are  so  located,  except  a  small  part  of  the  south 
end  of  the  tenth  line."  The  defendants  then  prayed  the  court  to 
instruct  the  jury,  that  if  they  believed  the  matters  so  offered  in 
evidence,  the  plaintiff  was  not  entitled  to  recover.  Which  in- 
struction the  court  gave.  The  plaintiff  excepted  ;  and  the 
verdict  and  judgment  being  against  him,  he  appealed  to  this 
court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE 
and  STEPHEN  J. 

Learned,  for  the  appellant  contended,  1 .  That  thea  ppellant 
(the  plaintiff  below)  derives  his  title  to  the  land  in  dispute  from 
the  State  of  Maryland,  in  whom  the  title  was  at  the  time  of  the 
grant  to  his  lessor. 

2.  That  the  patent  for  Gist's  Inspection,  under  which  the  de- 
fendants claim  to  hold  said  land,  contains  a  course  and  distance 
location  only,  and  the  land  in  dispute  lies  entirely  without  the 
lines  of  that  tract. 

3.  That  the  defendants  cannot  extend  their  lines  of  the  tract 
of  land  called  Gist's  Inspection,  so  as  to  take  in  any  alluvial  for- 
mations, without  the  lines  of  said  tract  according  to  its   course 
and  distance  location,  as  laid  down  upon  the  plots.     The  patent 
not  having  called  for  the  water  in  a  single  point. 

4.  That  the  lines  of  the  deed  from  Mercer  Porter  to  Hughes, 
for  a  part  of  the  tract  of  land  called  Gist's  Inspection,  cannot  pass 
a  title  to  any  land  lying  without  the  lines  of  the  whole  tract,  ac- 
cording to  its  course  and  distance  location;  but  that  the  second 
line  of  Porter's  deed  to  Hughes  must  terminate  at  the  outlines  of 
the  original  tract. 

5.  That  land  covered  by  navigable  water  belongs  to  the 
State,  and-is  the  subject  of  a  grant;  subject  however  to  the  com- 
mon use  of  fishing  and  navigation,  &c. 


OF  MARYLAND.  257 


Giraud's  Lessee  vs.  Hughes,  el  al — 1829. 


6.  That  there  is  no  alluvial  formation  appurtenant  to  the  land 
in  dispute  in  this  cause,  to  which  the  defendants  can  claim  title  as 
riparian  proprietor,  so  as  to  enable  them  to  follow  the  recession 
of  the  water  of  the  basin. 

7.  That  by  the  act  of  Assembly  the  permit  of  the  Port  War- 
dens of  Baltimore,  to  build  a  wharf,  was  contingent  in  its  effects, 
and  did  not  divest  the  State  of  its  title  to  the  land  covered  by 
the  permit,  but  in  the  event  of  the  completion  and  maintain- 
ance  of  a  wharf,  that  should  be  a  permanent  and  beneficial  im- 
provement. 

8.  That  the  wharf  mentioned  in  the  proceedings  in  this  cause 
was  never  completed,  and  is  not  such  a  permanent  and  beneficial 
improvement,  as  by  the  act  of  Assembly,  will  vest  a  title  in  fee 
in  the  land  embraced  in  the  Port  Wardens'  permit,  in  the  maker 
of  said  wharf,  and  those  who  may  claim  under  him. 

9.  That  the  defendants  having  caused  the  tract  of  land  called 
Gist's  Inspection  to  be  located  by  metes  and  bounds,  imder  a 
commission  obtained  by  their  ancestor  for  that  purpose,  are  now 
estopped  from  extending  the  lines  of  said  tract  of  land,  so  as  to 
take  in  other  land  lying  without  the  lines  of  said  tract,  at  the 
time  said  commission  was  executed. 

10.  That  the  title  to  the  land  in  dispute,  out  of  the  plaintiff,  on 
which  the  defendants  rely  in  their  defence,  is  not  such  a  title  in 
the  defendants  or  a  stranger,  as  is  sufficient  to  prevent  the  plain- 
tiff from  recovering. 

The  grant  for  Gist's  Inspection,  dated  the  9th  of  July  1732, 
has  no  calls  in  it,  but  all  the  lines  are  course  and  distance.  When 
the  survey  was  made  the  courses  ran  into  the  water,  and  the 
grant  was  for  land  covered  by  water.  The  points  arising  in  the 
first  bill  of  exceptions  are  waived  for  the  present.  On  the 
second  bill  of  exceptions  the  material  questions  arise.  It  has 
been  decided  by  this  court  that  the  title  to  lands  covered  by 
navigable  water  remains  in  the  State.  Brown  vs.  Kennedy,  5. 
Harr.  8f  Johns.  195.  Land  so  situated  remains  so  until  granted 
by  the  State.  Has  this  land  been  granted  by  the  State  ?  We 
contend  that  it  was  not  until  it  was  granted  to  the  lessor  of  the 
plaintiff.  This  tract  lies  without  the  lines  of  Gist's  Inspection; 
VOL.  I.— 33. 


258         CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  vs.  Hughes,  tt  at — 1829. 

and  Gist's  Inspection  must  be  located  course  and  distance  ;  and 
so  located,  it  does  not  interfere  with  the  land  granted  to  the 
lessor  of  the  plaintiff.  There  is  no  call  to  the  river  in  the 
grant  of  Gist's  Inspection.  It  cannot,  therefore,  bind  on  the 
river.  Imperative  calls  are  to  be  gratified,  and  course  and 
distance  disregarded.  This  is  settled  law.  When  the  grant 
of  a  tract  of  land  is  by  courses  and  distances  only,  the 
grantee  cannot  take  alluvial  formations.  All  such  formations 
belong  to  the  State,  unless  granted  to  another  by  the  State. 
The  proprietary  abolished  calls  in  all  grants,  in  order  to 
prevent  more  land  being  included  in  any  grant  than  the 
party  paid  for  and  contracted  to  purchase.  The  evidence 
in  this  cause  shows  that  there  were  no  alluvial  formations. 
Harbaugh  had  permission  from  the  Port  Wardens  to  make 
a  wharf,  which  he  commenced  and  worked  some  time  on  it, 
but  finally  abandoned  it.  The  ancestor  of  the  defendants 
then  took  possession,  having  before  then  leased  the  adjoining 
property  to  Harbaugh.  By  that  lease  he  located  his  land  ;  and 
where  a  location  is  made  by  a  party,  he  is  estopped  from  deny- 
ing it.  Ridgely's  Lessee  vs.  Ogle  Sf  Leonard,  4  Harr.  fy  McHen. 
123.  Upon  Harbaugh's  abandonment,  the  land  reverted  to  the 
State,  and  Hughes  had  no  right  to  interfere  with  the  wharf.  He 
was  a  trespasser  upon  the  property  of  the  state.  Act  of  Jlssem. 
April,  1783,  ch.  24,  sec.  9.  The  acts  of  Assembly  vesting  pow- 
ers in  the  Port  Wardens  to  grant  permission  to  erect  wharves, 
contemplated  permanent  and  beneficial  improvements.  The 
wharf  commenced  by  Harbaugh  and  abandoned,  was  not  a  per- 
manent or  beneficial  improvement.  It  was  suffered  to  go  to 
ruin.  His  contract,  therefore,  was  void  on  his  abandonment. 
Until  such  contract  is  fully  complied  with,  the  land  continues  in 
the  State. 

R.  Johnson,  for  the  appellees.  The  questions  which  arise 
upon  the  title  and  proof,  are, 

1.  Whether  or  not  the  defendants  are  entitled,  under  the 
doctrine  of  alluvion,  to  all  land  added  to  Gist's  Inspection  ? 


OF  MARYLAND.  259 


Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 


2.  Whether  or  not  such  a  tide  is  shown,  under  the  permission 
given  to  Harbaugh,  to  erect  a  wharf,  in  the  greater  part  of  the 
land  in  question,  as  will  prevent  the  plaintiff  from  recovering  ? 

1.  There  can  be  no  extension  of  the  lines  of  Gist's  Inspection 
farther  than  they  will  go  by  the  courses  and  distances  expressed 
in  the  grant.  But  the  question  of  alluvion  depends  upon  that 
tract  of  land  lying  on  the  river.  It  seems  that  a  considerable 
part  of  Gist's  Inspection,  at  the  time  of  the  grant,  was  covered 
by  water.  The  claim  under  that  grant,  in  the  absence  of  the 
doctrine  of  alluvion,  is  for  all  that  part  which  was  so  covered 
by  water  at  the  time  of  grant,  but  which  is  now,  by  the  reces- 
sion of  the  water,  become  firm  land.  The  right  of  a  person  to 
alluvion,  having  land  bounding  on  the  sea,  has  been  considered 
to  be  a  common  right  There  is  no  difference  whether  the 
tract  of  land  called  for  the  river  or  not,  the  right  to  alluvion  is 
the  same.  The  right  is  given  upon  the  principle,  that  he  might 
lose  land  by  the  washing  of  the  shore  by  the  river.  2  Blk. 
Com.  61,  66,  261,  262.  5  Bac.  M.  tit.  Prerogative  (B)  495. 
This  doctrine  is  not  made  to  depend  upon  the  grant  of  the  land 
calling  for,  and  binding  on  the  river ;  but  upon  the  fact  only  of 
the  land  lying  adjoining  the  river.  The  point  could  never  arise, 
if  the  land  called  for  and  to  bind  on  the  river, — for  in  such 
a  case,  wherever  the  river  went,  the  land  would  go  with  it. 
But  the  right  is  given  to  the  proprietor  of  the  adjoining  land, 
because  his  land  does  not,  by  its  lines,  call  to  bind  on  and  with 
the  water.  It  is,  therefore,  only  necessary  for  the  defendants 
to  show,  that  their  land  did  adjoin  the  river,  at  the  time  it  was 
granted.  / 

The  doctrine  of  estoppel  cannot  operate  in  an  action  of 
ejectment  as  to  the  locations  made  of  the  same  land  in  another 
action  of  ejectment,  even  if  between  the  same  parties.  Here 
the  plaintiff  has  not  counterlocated  the  location  made  by  the 
defendants  of  Gist's  Inspection.  The  evidence  is,  that  the 
water  run  in  a  particular  manner,  until  it  gradually  receded  to 
where  it  now  runs  from,  O  to  B,  to  5  to  V,  leaving  land  formed 
by  accretion.  This  is  admitted  in  the  bill  of  exceptions,  and 
does  away  the  effect  of  Harbaugh's  wharfing  out  a  part  of  it. 


260          CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  TS.  Hughes,  et  al. — 1829. 

If  this  gradual  increase  of  the  land  was  by  the  recession  of  the 
water,  in  fconjunction  with  the  acts  of  Harbaugh,  still  the  doc- 
trine of  alluvion  will  attach.  Jldams  vs.  Frothingham,  3  Mass. 
Rep.  352.  For  a  part  of  the  land  at  least,  there  has  been  a 
gradual  accretion,  independent  of  the  acts  of  Harbaugh. 

2.  The  defendants  are  entitled,  under  the  permit  ioHarbaugh, 
to  build  a  wharf.  But  it  has  been  said  that  Jlugfies  was  a  tres- 
passer. Suppose  he  was,  it  was  nothing  to  the  plaintiff.  It  was 
only  necessary  for  the  defendants  to  show  that  the  State  had 
parted  with  its  title  to  the  land.  The  Port  Wardens  had  no 
authority  to  give  permission  to  Harbaugh,  to  wharf  out  in  front 
of  //Hg/ies's  land,  so  as  to  deprive  him  of  his  water  right.  The 
wharfing  privilege  was  to  be  given  to  the  owner  of  the  land,  in 
front  of  which  the  wharf  was  to  be  made.  Act  of  1 745,  ch.  9, 
sec.  10.  The  lease  from  Hughes  to  Harbaugh  was  only  of  a 
temporary  interest.  When  is  the  improvement  perfected  so  as 
to  vest  the  property  in  the  improver  ?  There  is  nothing  to  show 
but  that  the  wharf  erected  by  Harbaugh,  did  answer  all  the 
purposes  for  which  it  was  intended.  It  will  not  be  said,  that  if 
the  wharf  had  been  completed,  but  is  now  in  a  ruinous  state,  it 
would  divest  the  title  out  of  the  improver.  There  \\  as  an  im- 
provement made,  even  if  the  wharf  was  not  completed.  If  the 
permission  granted,  was  not  complied  with,  it  was  the  duty  of 
the  Port  Wardens  to  have  it  destroyed,  as  a  nuisance.  Act  of 
April,  1783,  ch.  24.  The  presumption  is,  that  the  permit  to 
build  the  wharf,  was  complied  with.  When  Hughes  took  pos- 
session after  HarbaugVs  abandonment,  the  right  became  his- 
He  was  not  bound  to  complete  the  wharf.  All  Harbaugh's  rights 
were  vested  in  Hughes.  After  the  act  of  April,  1783,  ch.  24, 
this  kind  of  property  and  right  were  placed  under  the  control 
of  the  Port  Wardens,  and  the  land  office  had  no  right  to  grant  a 
warrant  to  affect  any  land  so  placed.  All  the  right  of  the  State, 
if  it  had  any,  was  vested  in  the  Port  Wardens;  and  by  the  act 
of  1796,  ch.  68,  is  vested  in  the  corporation  of  Baltimore.  Could 
not  Harbaugh  transfer  his  right  to  another;  and  could  he  not 
abandon  in  favour  of  Hughes  ?  It  will  be  presumed  that  he  had 
regularly  abandoned  in  favour  of  Hughes. 


OF  MARYLAND.  261 

Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 

Mitchell,  on  the  same  side.  When  Gist's  Inspection  was  sur- 
veyed and  granted,  as  all  the  deeds  offered  in  evidence  recog- 
nize, the  tract  of  land  ran  with  the  edge  of  the  river.  The 
common  law  doctrine  of  alluvion  is  the  civil  law  of  alluvion. 
Harg.  L.  T.  28.  Mbot  of  Ramsay's  case,  3  Dyer,  326.  b. 
The  State  never  had  the  right  of  alluvion.  It  is  an  increment 
of  rivers  subsequent  to  possession  being  taken  by  the  sovereign. 
It  cannot  be  appropriated  or  granted  to  any  person,  being  im- 
perceptible. If  it  was  perceptible  it  might  be  granted,  but 
being  imperceptible  it  accrues  to  the  adjacent  soil.  If  an 
island  appears  in  the  sea,  the  sovereign  may  take  possession  of 
it.  The  King  vs.  Lord  Yarborough,  10  Serg.  fy  Lowb.  19. 
At  what  time  did  the  right  of  the  State,  if  any,  accrue  to  this 
alluvion  ?  The  right  of  the  public  to  navigable  rivers,  is  no 
longer  than  any  such  river  is  covered  by  water.  When  it  is  no 
longer  a  public  river,  but  has  become  land,  it  belongs  to  the 
owner  of  the  adjacent  soil,  whether  his  grant  for  his  land  called 
to  bind  on  the  river  or  not.  This  case  is  not  similar  to  Brown 
vs.  Kennedy.  This  is  a  case  of  dereliction,  not  a  filling  up. 
Harg.  L.  T.  28.  Abbot  of  Ramsay's  case,  3  Dyer,  326.  2  Blk. 
Com.  261.  5  Bac.  M.  tit.  Prerogative  (B.  3,)  498.  The  Bat- 
ture  case,  5  Hall's  L.  J.  arguments  of  Jefferson  and  Livingstone, 
26,  27,  60,  63,  42,  46,  146,  147,  148,  149,  160,  &c.  txmart 
vs.  Dundee,  8  Bro.  Parl.  Gas.  119.  Poth.  19,  20.  Valid,  B. 
I  ch.  22,  sec.  5,  page  121.  The  right  to  the  adjoining  water 
passes  as  an  appurtenance  in  all  grants  of  land.  This  gave  a 
right  to  the  holders  of  adjoining  lands  to  build  wharves  in  Bal- 
timore, if  it  did  not  obstrust  ttye  navigation  of  the  river.  The 
acts  of  1745  and  1783,  took  away  all  the  State's  right  and 
vested  it  in  the  Port  Wardens ;  and  they  were  the  judges  whe- 
ther or  not  Harbaugh  had  complied  with  the  permission  grant- 
ed to  him  to  build  a  wharf.  If  Hughes  was  the  riparian  pro- 
prietor both  before  and  after  his  lease  to  Harbaugh,  the  State 
had  no  right  to  divest  him  of  such  right.  After  Harbaugh 
abandoned,  the  rights  of  Hughes  were  reinstated,  and  he  was 
clothed  with  all  Harbaugh's  rights,  who  could  not  acquire  a 


2T>>          CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 

— - 1 ; 

fee  simple  right  against  Hughes.     See  2  HalVs  L.  J.  434,  and 

4  HalVs  L.  J.  517. 

The  verdict  in  the  former  ejectment  did  not  affect  the  ques- 
tion as  to  the  land  now  in  dispute.  Here  the  defendants,  and 
those  under  whom  they  claim,  have  had  long  and  uninterrupted 
possession;  and  the  presumption  is  that  the  water  belonged  to 
them.  Beaky  vs.  Slutw,  6  East.  213. 

Learned,  in  reply.  The  question  is  whether  or  not  land  form- 
ed by  alluvion,  vests  in  the  proprietor  of  the  adjoining  land? 

1 .  As  to  the  effect  of  the  grant  of  Gist 's  Inspection — it  incor- 
porates the  terms  and  conditions  under  which  the  grantee  held 
the  land.     Calls  were  excluded.     Kilty's  Land  Hold.  Jlss.  228, 
229.     The  condition  of  the  grant  was,  that  there  should  be  no 
calls,  but  that  each  line  was  to  run  course  and  distance  from 
the  beginning.     The  grantee  was  then  bound  by  course  and 
distance  location,  and  could  not  bind  on,  and  run  with  the  river. 
Lands  here  are  not  held  as  they  are  in  England.     There  it  is 
a  prerogative  right,  but  here  all  lands  are  passed  by  grant  and 
held  in  fee.     The  whole  province  was  originally  granted  to  the 
Lord  Proprietary.     He  granted  to  individuals,  and  what  he  did 
not  grant,  remained  in  him,  and  now  in  the  State.     Lands  are 
not  Ueld  here  by  fiction  of  law,  but  they  are  held  under  grants, 
which  are  differently  construed  from  'those  in  England.     Our 
courts  have  said,  that  course  and  distance  are  to  be  the  location, 
where  there  are  no  calls;  but  if  there  are  calls,  they  are  to  be 
gratified,  and  course  and  distance  not  to  be  regarded.     Is  this 
so  in  England?     Where  the  adjacent  proprietor  of  the  soil,  by 
his  grant,  calls  for  and  binds  on  the  river,  then  he  is  entitled  to 
all  alluvion;  but  if  his  grant  has  no  such  call,  he  has  no  right  to 
alluvion.     Vattel,  B.  1.  ch.  22,  page  121.     2  Blk.  Com.  261, 
262.     Brown  vs.  Kennedy,  5  Harr.  fy  Johns.  1 95. 

2.  Alluvion  must  be  imperceptible,  &c.  and  if  not,  the  land 
formed  otherwise  belongs  to  the  sovereign  power,  and  does 
not  vest  in  the  riparian  proprietor. 

3.  There  was  not  such  an  improvement  made  by  Harbaugh 
as  the  act  of  Assembly  contemplated ;  and  this  court  from  the 


OF  MARYLAND.  263 


Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 


evidence,  is  competent  to  judge  of  that  fact,  and  apply  the  law 
to  it.  The  evidence  is  that  the  wharf  was  not  completed — only 
part  of  it  was  built,  and  then  it  was  abandoned.  There  is  no 
evidence  that  it  was  ever  used  as  a  wharf  for  any  purpose. 

STEPHEN,  J.  delivered  the  opinion  of  the  court. 

This  action  was  instituted  in  Baltimore  County  Court,  to  re- 
cover a  parcel  of  land  called  Augustus's  Discovery  Resurveyed, 
which  was  patented  to  John  James  Giraud,  as  vacant  land,  and 
whether  it  was  vacant  or  not  at  the  time  he  caused  it  to  be  re- 
surveyed,  is  the  question  now  to  be  determined,  and  in  order  to 
ascertain  this  question  it  becomes  necessary  to  decide  what  was 
the  true  location  of  Gist's  Inspection,  patented  to  Richard  Gist, 
on  the  9th  of  July,  in  the  year  1732,  that  is,  not  how  it  was  ori- 
ginally located,  but  what  was  its  true  position  at  the  time  of  Au- 
gustus's Discovery,  and  the  resurvey  upon  Augustus's  Discovery 
were  taken  up.  It  is  admitted  that  Gist's  Inspection,  when  it  was 
surveyed  and  patented,  ran  into  the  water  or  basin  of  Baltimore; 
since  that  time  the  water  has  gradually  receded,  and  the  land 
formed  by  the  recession  of  the  water,  is  the  land  upon  which 
Giraud  made  his  survey  of  Augustus's  Discovery  in  the  year 
1812,  and  his  resurvey,  in  the  year  1813.  In  the  course  of  the 
trial,  the  parties  made  the  following  admission :  "  It  is  admitted 
that  the  several  water  lines  or  shores  located  by  either  party  in 
this  cause,  shew  and  designate  where  the  tide  water  of  the  Pa- 
tapsco  river  or  basin  of  Baltimore,  flowed  at  different  periods  of 
lime,  receding  gradually  eastwardly,  to  where  the  same  now  are 
shewn  by  the  most  eastward^  location  thereof,  in  blue  shaded 
lines,  and  that  the  lines  of  Gist's  Inspection,  when  the  same  was 
granted,  including  part  of  the  sixth  line  thereof  from  the  end  of 
said  line,  ran  into  the  water  Patapsco  or  basin  of  Baltimore 
Town,  to  the  end  of  the  tenth  line  thereof,  and  that  the  above 
lines  are  so  located,  except  a  small  part  of  the  south  end  of  the 
tenth  line."  It  has  been  contended  that  as  the  lines  of  Gist's  In- 
spection were  originally  run,  course  and  distance,  when  the  sur- 
vey of  it  was  made,  and  had  no  call  to  the  water,  it  must  be 
confined  to  its  course  and  distance,  and  cannot  be  extended  be- 


.'•it          CASES  IN  THE  COURT  OF  APPEALS 

Giraud's  Lessee  rs.  Hughes,  et  al — 1829. 

yond  them.  This  position  is  true  as  a  general  principle  in  expo- 
sition of  grants;  but  the  question  is  not  here  what  was  the  true 
original  location  of  Gisfs  Inspection  at  the  time  it  was  survey- 
ed, but  whether  under  the  circumstances  of  this  case,  the  defen- 
dants are  entitled  to  the  adjacent  land  formed  by  the  waters 
having  gradually  receded  in  an  eastern  direction.  Christopher 
Jlughes,  the  father  of  the  defendants,  held  a  part  of  Gist's  In- 
spection, and  the  deed  under  which  he  claimed  title  to  it,  de- 
scribes it  as  running  into  the  water;  that  deed  bears  date  the 
Cth  of  June,  1782.  The  principle  seems  to  be  well  settled, 
that  where  a  tract  of  land  lies  adjacent  or  contiguous  to  a  navi- 
gable river  or  water,  any  increase  of  soil  formed  by  the 
waters  gradually  or  imperceptibly  receding,  or  any  gain  by 
alluvion  in  the  same  manner,  shall,  as  a  compensation  for  what 
it  may  lose  in  other  respects,  belong  to  the  proprietor  of  the 
adjacent  or  contiguous  land.  For  this  principle,  see  2  Blk. 
Com.  page  261,  where  he  says,  "as  to  land  gained  from  the 
sea,  either  by  alluvion  by  the  washing  up  of  sand  and  earth,  so 
as  in  time,  to  make  terra  firma,  or  by  dereliction,  as  when  the 
sea. shrinks  back  below  the  usual  water  mark;  in  these  cases 
the  law  is  held  to  be,  that  if  this  gain  be  by  little  and  little,  by 
small  and  imperceptible  degrees,  it  shall  go  to  the  owner  of  the 
land  adjoining."  It  is  then  not  upon  the  principle  that  the  land 
calls  for  the  water,  but  because  it  adjoins  the  water,  that  the 
owner  acquires  a  title  to  the  soil  so  formed,  for,  continues  he, 
de  minimis  non  curat  lex ;  and  besides  these  owners  being  often 
losers  by  the  breaking  in  of  the  sea,  or  at  charges  to  keep  it 
out,  this  possible  gain  is  therefore,  a  reciprocal  consideration 
for  such  possible  charge  or  loss;  here  we  have  in  plain  and 
strong  language,  the  reason  of  the  rule,  which  places  the 
acquisition  of  the  additional  soil  by  the  owner  of  the  adjoining 
land,  upon  the  ground,  that  he  might  be  a  loser  by  the  breaking 
in  of  the  sea,  or  at  an  expense  to  keep  it  out.  And  to  bring  the 
case  within  the  operation  of  the  rule,  it  is  only  necessary  that 
the  land  should  be  adjoining  the  water.  To  the  same  effect  is 
the  law  laid  down  in  the  5th  vol.  of  Bacon's  Abridgement,  page 
494,  title  prerogative ;  the  principle  is  there  stated  to  be,  that 


OF  MARYLAND.  266 


Giraud's  Lessee  vs.  Hughes,  et  al. — 1829. 


if  the  sea  leaves  any  shore  by  a  sudden  falling  off  of  the  water, 
such  derelict  lands  belong  to  the  king,  but  if  a  man's  lands 
lying  to  the  sea,  are  increased  by  insensible  degrees,  they  be- 
long to  the  soil  adjoining.  Here,  too,  it  appears  only  to  be 
necessary,  that  the  land  should  be  adjoining  to  the  sea,  to  en- 
title its  owner  to  the  derelict  land  formed  by  the  recession  of 
the  water.  It  appears  by  the  proof  in  the  cause,  that  Harbaugh 
who  obtained  from  the  Port  Wardens  in  Baltimore,  a  permis- 
sion to  make  a  wharf,  never  did  complete  it  according  to  such 
permission,  but  after  proceeding  in  the  work  for  some  time, 
totally  abandoned  it.  This  permission  he  obtained  from  the 
Board  of  Wardens  ivho  were  authorised  to  grant  it  by  the  pro- 
visions of  the  act  of  1783,  ch.  24,  but  in  order  to  vest  a  title  in 
such  wharf,  it  appears  to  be  necessary  that  he  should  have 
completed  it.  This  appears  to  be  essential  by  the  provisions 
of  the  act  of  1745,  ch.  9,  sec.  10,  by  which  it  is  enacted,  that 
"all  improvements,  of  what  kind  soever,  either  wharves,  houses 
or  other  buildings,  that  have  or  shall  be  made  out  of  the  water, 
or  where  it  usually  flows,  shall  (as  an  encouragement  to  such 
improvers,)  be  forever  deemed  the  right,  title,  and  inheritance 
of  such  improvers,  their  heirs  and  assigns,  forever."  Neither 
Hughes  nor  Harbaugh  therefore,  acquired  any  title  to  the  work 
done  by  Harbaugh,  in  virtue  of  his  permission,  but  it  being 
expressly  admitted  by  the  parties,  that  the  water  gradually 
receded  to  where  it  now  flows,  it  is  upon  the  ground  of  such 
gradual  recession,  by  which  the  derelict  land  was  formed,  that 
Hughes  and  those  now  representing  him  claim  title  to  it.  The 
counsel  for  the  appellant  having/  waived  the  points  arising  on  the 
first  bill  of  exception,  it  is  not  deemed  necessary  to  give  any 
opinion  upon  it. 

JUDGMENT  AFFIRMED. 


VOL,  I.— 34. 


266         CASES  IN  THE  COURT  OF  APPEALS 

Hoskins  vs.  Rhodes. — 1829. 

HOSKINS  vs.  RHODES. — December,  1829. 

G,  a  feme  sole,  contracted  with  the  plaintiff  to  let  him  BOW  a  field  in  grain, 
and  he  agreed  to  give  her  one  third  of  all  the  grain  raised,  as  rent.  The 
plaintiff  went  upon  and  sowed  the  field  in  rye.  The  defendant,  who  after  the 
making  the  contract,  intermarried  with  G,  entered  upon  the  field,  refused 
the  plaintiff  permission  to  cut  the  crop,  and  afterwards  cut  it  himself  and 
carried  it  away.  In  an  action  of  trover  for  the  value  of  the  rye,  it  was 
held  that  the  contract  between  G  and  the  plaintiff,  clearly  constituted  them 
landlady  and  tenant;  and  that  the  plaintiff  was  entitled  to  recover. 

The  reservation  of  rent  to  nomine  necessarily  constitutes  a  lease. 

APPEAL  from  Frederick  County  Court.  This  was  an  action 
of  trover,  brought  by  the  appellee  (the  plaintiff  below)  to  reco- 
ver the  value  of  two  hundred  bushels  of  rye.  The  general 
issue  was  pleaded. 

At  the  trial  the  plaintiff  offered  in  evidence  the  following 
lease  from  Vioktta  Gwinn  to  Samuel  Wiles,  viz : 

"Articles  of  agreement  made,  concluded,  and  agreed  upon 
this  the  4th  day  of  March,  1820,  between  Samuel  Wiles,  of 
Frederick  county,  in  the  State  of  Maryland  of  the  one  part,  and 
VioUlta  Gwinn  of  the  other  part  of  the  said  county  and  State  as 
above  mentioned,  to  wit:  The  said  Samuel  Wiles,  for  the  consi- 
deration hereafter  mentioned,  hath  agreed,  and  hereby  covenants 
and  agrees  to  build  the  following  buildings,  to  wit:  one  dwelling 
house,  one  stable,  one  corn  house  and  spring  house,  and  to  keep 
the  fences  in  good  repair.  The  said  Violetta  Gwinn,  for  the 
above  consideration,  rents  to  the  said  Wiles  her  part  of  a  tract 
of  land,  formerly  occupied  by  Joseph  Gwinn,  late  of  Frederick 
county,  deceased,  for  which  she  insures  him  three  years  quiet 
and  peaceable  possession  for  the  term  of  three  years  Tent  free, 
the  first  year  to  commence  on  the  first  of  April,  1820.  For  and 
to  the  true  and  faithful  performance  of  the  foregoing  covenants 
and  agreements,  the  said  parties  do  hereby  bind  themselves  to 
each  other  and  their  respective  heirs,  executors  and  administra- 
tors in  the  sum  of  $600  dollars,"  &c. 

The  plaintiff  then  proved  that  sometime  in  the  year  1822, 
he  called  upon  Violetta  Gwinn,  she  being  a  feme  sole,  and 


OF  MARYLAND.  267 


Hoskins  vs.  Rhodes — 1829. 


contracted  with  her  to  sow  a  field  of  ten  acres  of  land,  part  of 
the  farm  leased  to  Samuel  Wiles,  in  grain,  and  to  give  to  Vio- 
Utta  Gwinn  one  third  of  all  the  grain  raised  upon  said  field  as 
rent.  That  in  pursuance  of  said  contract  the  plaintiff  went 
upon  and  sowed  said  field  in  rye — That  in  the  month  of  July, 
1823,  the  defendant,  who  had  after  the  contract  aforesaid,  in- 
termarried with  Violetta  Gwinn,  entered  upon  said  field  and  cut 
and  carried  away  said  crop.  That  the  plaintiff  had  previously 
applied  to  the  defendant,  who  had  gone  into  the  possession  of  the 
farm  mentioned  in  the  lease  to  Samuel  Wiles,  for  permission  to 
cut  said  crop,  which  the  defendant  refused,  stating  that  he  would 
cut  the  crop  himself.  The  plaintiff  further  offered  in  evidence, 
that  at  the  time  of  the  contract  aforesaid,  Violetta  Gwinn  agreed 
that  the  plaintiff  should  hold  said  farm  for  three  years  after  the 
expiration  of  the  lease  to  Samuel  Wiles.  The  defendant  then 
proved  that  in  the  spring  of  1823,  the  plaintiff  and  defendant 
agreed  that  that  part  of  the  lease  which  was  to  run  from  the  4th 
of  March,  1823,  should  be  abandoned,  and  that  the  defendant 
never  went  into  possession  of  any  other  part  of  said  farm,  except 
the  ten  acre  field  aforesaid.  The  plaintiff  then  proved  by  Sam- 
uel Wiles,  party  to  said  lease,  that  in  the  fall  of  1822,  said 
Wiles  agreed  to  let  to  the  plaintiff  the  ten  acre  field  aforesaid, 
to  be  sowed  in  grain,  one  third  of  which,  raised  upon  said  field, 
was  to  be  delivered  to  the  said  Wiles  in  the  shock.  The  plain- 
tiff further  proved  by  a  witness,  that  he  heard  the  defendant  say 
that  he  would  stand  by  his  wife's  contracts;  and  that  the  plain- 
tiff might  cut  the  grain  growing  upon  the  said  ten  acre  field.  The 
defendant  then  prayed  the  cou^t  to  instruct  the  jury  that  upon 
the  evidence  offered,  the  plaiiitiff  was  not  entitled  to  recover. 
Which  instruction  the  court  [T.  BUCHANAN,  A.  J.]  refused  to 
give;  but  on  the  contrary  thereof,  gave  their  opinion  to  the  jury 
that  the  plaintiff  was  entitled  to  recover.  The  defendant  ex- 
cepted;  and  the  verdict  and  judgment  being  against  him,  he  ap- 
pealed to  this  court. 

The  cause  was  argued  before  BUCHANAN,   Ch.  J.,  and 
EARLE,  MARTIN,  STEPHEN  and  ARCHER,  J. 


208          CASES  IN  THE  COURT  OF  APPEALS 

Hoskins  vs.  Rhodes — 1829. 

Nelson  for  the  appellant,  contended, 

1.  That  the  lease  of  the  land  to  Wiles,  being  for  a  term 
certain,  and  to  expire  on  a  day  certain,  the  landlord  was  entitled 
to  the  possession  of  the  whole,  on  the  1st  of  April,  1823.     That 
the  crops  growing  on  said  farm,  after  that  day,  were  the  pro- 
perty of  the  landlord,  no  reservation  having  been  made  by  the 
tenant,  of  a  right  to  take  away  said  crops,  after  the  determina- 
tion of  the  lease.     That  of  consequence,  the  agreement  be- 
tween the  tenant  ( Wiles]  and  the  appellee,  could  avail  nothing  to 
the  prejudice  of  the  rights  of  the  appellant.     The  tenant  (  Wiles) 
could  transfer  to  the  appellee,  no  other  or  greater   interest, 
than  he  held  himself,  in  the  premises  leased — 2  Blk.  Com.  145. 
1  Thomas  Coke,  Lilt.  633. 

2.  That  by  the  agreement  with  Miss  Gwinn,  the  appellee 
acquired  no  such  exclusive  interest  in  the  growing  crop,  as  to 
enable  him  to  maintain  the  action.     Because  the  letting  of  the 
ten  acre  field  upon  shares,  for  a  single  crop,  was  no  lease  of  the 
land;  and  the  possession,  in  point  of  law  and  fact,  remained 
with  the  landlord.     And  with  reference  to  said  crop,  the  appel- 
lant and  appellee,  were  tenants  in  common,  having  therein  undi- 
vided interests.     Hare  vs.  Celky,  Cro.  Eliz.  143.     And  because 
there  was  in  proof,  nothing  to  shew  a  destruction  of  the  property, 
(which  is  indispensable,  at  the  time  of  the  suit  brought,)  which 
alone  would  enable  one  tenant  in  common,  to  maintain  trover 
against  his  co-tenant.     Heath  rs.  Hubbard,  4  East.  110,  121. 
Wilbraham  vs.  Snow,  2  Saund.  47,  f.  g.  (note  1.)  Bulkr^s  N.  P. 
34.     1   Chitttfs  Plead.  66.     With  regard  to  the  three  years 
lease,  of  which,  there  is  proof  of  an  agreement  between  the  ap- 
pellee and  the  wife  of  the  appellant,  it  is  only  necessary  to  say, 
that  it  was  abandoned,  and  that  no  possession  of  the  property 
in  question,  passed  to  the  appellee  under  it.     The  defendant 
does  not  contend,  that  under  the  circumstances  disclosed,  the 
appellee  was  not  entitled  to  his  portion  of  the  crop,  and  that 
he  might  not  have  recovered  the  value  thereof  in  a  different 
form  of  action,  or  even  in  the  action  of  trover  could  he  have 
shown  a  destruction  of  the  property.     He  insists,  however,  that 
of  the  crops  in  question,  the  appellant  and  appellee,  were  tenants 


OF  MARYLAND.  269 


Hoskins  vs.  Rhodes.— 1829. 


in  common,  and  that  the  cutting  and  carrying  it  away,  did  not 
constitute  such  a  conversion  of  the  property,  as  to  enable  the 
appellee  to  maintain  his  action  of  trover. 

Thomas,  for  the  appellee,  insisted  that  the  parties  were  not 
tenants  in  common,  under  the  contract  as  proved  and  set  forth  in 
defendant's  bill  of  exception.  Butler's  JV.  P.  85,  and  the  case 
there  cited,  Welch  vs.  Hall.  Weems  vs.  Stallings,  2  Harr.  fy 
Johns.  365.  If  the  plaintiff  and  defendant  are  to  be  considered 
as  tenants  in  common  of  the  grain  in  question;  yet  it  is  contended 
that  the  opinion  of  the  court  below,  was  right:  because,  there 
was  an  actual  conversion  and  destruction  in  law,  of  the  common 
property  by  the  defendant,  who  seized  the  whole  grain,  claimed 
it  as  his  own,  and  denied  the  title  of  the  plaintiff.  Doe  vs. 
Prosser,  1  Cowper's  Reports,  218.  At  all  events,  whether  the 
acts  of  the  defendant  amounted  to  a  destruction  of  the  common 
property,  is  a  question  which  the  court  below  rightly  should 
have  left  to  the  determination  of  the  jury.  Barnardiston  vs. 
Chapman  and  Smith,  Bull.  JV*.  P.  35. 

The  case  relied  on  by  the  counsel  for  the  appellant,  Hare  vs. 
Celley,  Croke  Eliz.  143,  is  not  in  point,  and  if  parallel,  is  not 
law  in  this  State. 

1.  Because,  in  that  case,  Hare,  the  tenant  in  fee,  never  parted 
with  possession,  of  consequence   the  plaintiffs  did   not  stand 
in  relation  of  landlord  and  tenant.    In  this  case,  the  appellee  had 
exclusive  possession  by  contract,  with  Wiles,  with  Miss  Gwinn, 
and  with  the  defendant  himself.     In  that  case  Hare  furnished  a 
part  of  the  seed  grain,  aided  in  manuring  and  sowing  the  land. 
In  this  case  no  such  labour  in  common,  and  possession  in  common, 
existed  between  the  plaintiff  and  defendant — Moreover  the  rela- 
tion of  landlord  and  tenant  is  expressly  created  by  the  contract, 
that  one  third  of  the  grain  should  be  delivered  by  the  plaintiff, 
to  Miss  Gwinn,  as  rent. 

2.  The  case  from  Croke  is  not  law  in  this  State,  having  been 
virtually  overruled  by  the  case  of  Weems  vs.  Stallings,  2  Harr. 
fy  Johns.  365.     No  reliance  should  be  placed  on  the  case  of 
Bradish  vs.  Schenck,  8  Johns.  Rep.  152 — the  only  authority  re- 
lied on  there  being  the  case  already  referred  to  in  Cro.  Eliz. 


270         CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  «x.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N — 1829. 

which  is  not  applicable  to  this  case,  and  is  not  sustained  by  re- 
ference to  any  known  authority  in  the  law. 

MARTIN,  J.  delivered  the  opinion  of  the  court 
The  contract  between  Miss   Gwinn  and  Rhodes  for  the  ten 
acre  field,  clearly  constituted  them  landlady  and  tenant.     He 
was  to  make  a  crop,  and  give  her  one  third  of  it  for  rent. 

The  case  of  Hare  and  others  against  Celley,  reported  in  Cro. 
Eliz.  143,  is  very  different  from  that  presented  by  this  record. 
In  the  reported  case  the  contract  was,  that  Hare,  the  owner  of 
the  soil,  should  find  one  half  of  the  seed,  and  the  other  half  to 
be  supplied  by  the  three  persons  who  were  to  manure  and  cul- 
tivate the  land,  and  the  crop  to  be  divided  between  them.  The 
court  said  this  being  for  only  one  crop,  it  was  not  a  lease.  In 
the  case  now  to  be  decided,  there  is  nothing  for  legal  construc- 
tion. The  agreement  is  explicit,  that  one  third  of  the  crop 
should  be  paid  as  rent,  and  the  reservation  of  rent  eo  nomine, 
necessarily  constitutes  a  lease — Rhodes  was  the  tenant  of  Miss 
Gwinn  by  express  contract,  and  it  is  immaterial  whether  the 
rent  was  to  be  paid  in  money,  or  to  depend  on  the  amount  of 
the  profits  of  the  land.  2  Wheat's  Selwyn,  1017,  note  2.  Bull. 
JV.  P.  85. 

JUDGMENT  AFFIRMED  WITH  COSTS. 


HAGTHORP  et  ux.  et  al.  vs.  HOOK'S  Adm'rs  D.  B.  N. — Decem- 
ber, 1829. 

In  a  cause  which  had  been  set  down  for  hearing,  the  Chancellor,  after  argu- 
ment of  counsel,  proceeded  to  discuss  many  rules  and  principles  of  equity,  and 
a  great  variety  of  facts,  as  applicable  to  the  subject  under  consideration ;  and 
announced  his  intention  at  some  future  day  to  decree  accordingly.  To  enable 
him  to  do  so,  he  referred  the  cause  to  the  auditor,  to  state  an  account  in  con- 
formity to  his  views,  from  the  proceedings,  and  proofs  then  in  the  cause,  or 
from  such  other  proofs,  as  might  be  adduced  by  the  parties,  which  they  were 
respectively  authorised  to  introduce  upon  notice,  before  a  given  day.  la 
this  state  of  the  cause,  an  appeal  was  taken  ;  and  upon  a  motion  to  dismiss 
it,  HELD,  that  the  order  in  question  did  not  so  settle,  or  materially  affect, 


OF  MARYLAND.  271 

Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

all,  or  any  of  the  rights,  or  interests  in  controversy,  as  to  make  it  a  decre- 
tal order,  from  which  an  appeal  would  lie; — that  it  was  a  mere  preparative,, 
to  the  decision  of  the  cause,  and  not  decretal;  and  that  it  was  only  front 
what  the  Chancellor  had  done,  that  is,  adjudged,  or  decreed,  and  not  from 
what  he  intends  to  do,  that  an  appeal  would  lie. 

A,  by  deed,  conveyed  certain  real  and  personal  chattels  to  I,  upon  the  proviso, 
that  if  I,  his  executors,  &c.  should  absolutely  omit,  neglect  and  refuse  to  pay. 
certain  creditors  of  A,  recited  in  the  deed,  their  just  demands,  then  the  deed 
should  be  void.  This  property  came  to  the  hands  of  I,  and  after  his  death,, 
passed  to  his  administrators  and  the  other  defendants  claiming  under  himr 
and  them.  Upon  a  bill  filed  by  the  administrator  de  bonis  non  of  A,  praying 
that  the  property  may  be  accounted  for,  and  together  with  the  rents  and 
profits  delivered  up,  it  appeared  that  some  part  of  the  chattels  real  was 
still  in  the  hands  of  I's  representatives,  some  claimed  by  those  who  had 
purchased  with  a  reference  to  the  original  conveyance,  and  the  residue  by 
those  who  offered  no  proof  of  being  purchasers  for  value  without  notice. 
The  Chancellor  decreed  that  the  deed  would  be  considered  a  mortgage,  and 
nothing  having  occurred  to  destroy  its  redeemable  quality — but  one  of  A's 
creditors  having  been  paid,  directed  the  auditor  to  state  an  account,  in 
which  I's  representatives  must  be  charged  with  the  value  of  the  whole  of 
the  personal  chattels,  and  interest  thereon,  from  the  date  of  the  deed  from 
A  to  I ;  and  with  the  rents  and  profits  of  the  real  chattels  from  the  same  date, 
and  until  the  time  when  they  passed  into  the  hands  of  the  other  defendants  ; 
who  were  responsible  during  the  time  they  respectively  had  possession.  And 
that  I's  representatives  would  beheld  liable  for  all  rents,  and  profits,  which 
the  other  defendants  should  fail,  or  be  unable  to  pay,  giving  them  credit  for 
the  debt  paid.  PER  BLAND,  CHANCELLOR. 

According  to  the  law  of  England,  an  administrator  de  bonis  non,  cannot  call 
the  representatives  of  the  previous  deceased  administrator  of  his  intestate 
to  account,  for  any  property  of  the  intestate  that  such  predecessor  may  have 
converted  or  wasted  ;  nor  can  he  claim  or  recover  any  thing,  but  those 
goods,  chattels  and  credits  of  his  intestate  which  remain  in  specie,  and  are 
capable  of  being  clearly  and  distinctly  designated  and  distinguished  as  the 
property  of  the  intestate.  IB. 

In  equity,  an  executor  or  administrator,  is  considered  as  a  trustee  of  the  credi- 
tors, legatees  and  next  of  kin  of  the  deceased  ;  is  expected  and  required  to 
preserve  the  property  of  the  deceased  apart  from  his  own  ;  and  if  he  does 
so,  the  court  will  do  every  thing  that  can  be  done  to  protect  and  assist  him. 

IB. 

The  only  remedy  at  present  against  an  administrator  or  his  representatives, 
for  any  waste  or  misapplication  of  the  effects  of  the  deceased,  is  by  an  action 
at  law  upon  his  administration  bond,  by  any  one  interested.  IB. 

The  authority  conferred  by  letters  of  administration  de  bonis  non  by  our  law, 
is  to  administer  all  things  described  in  the  act  of  Assembly  as  assets,  not 


272         CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  we.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N— 1829. 

converted  into  money,  and  not  distributed,  delivered,  or  retained  by  the  for- 
mer executor  or  administrator,  under  the  direction  of  the  Orphan's  Court ; 
and  such  an  administrator  can  only  sue  for  those  goods,  chattels  and  credits, 
which  his  letters  authorise  him  to  administer.  IB. 

The  legal  title  to  the  chattels  real,  and  personal  estate,  of  an  intestate,  vesti 
in  his  administrator,  who  alone  is  considered  as  to  them  his  legal  represen- 
tative ;  between  the  death,  and  the  granting  of  letters,  that  title  is  suspended 
and  vested  in  no  one.  IB. 

In  the  construction  of  the  statute  of  distributions,  it  has  been  held,  that  although 
the  creditors  of  the  deceased  are  the  first  and  special  objects  of  its  regard  ; 
yet  that  the  next  of  kin,  among  whom  the  surplus  is  to  be  distributed  take 
an  interest  which  vests  in  them,  by  operation  of  law  immediately,  in  the 
nature  of  a  present  debt  of  an  unascertained  amount  payable  at  a  future 
day;  and  it  is  clear  that  they  can  only  obtain  possession  of  their  distributive 
share,  through  and  from  the  administrator.  IB. 

When  the  general  replication  is  put  in,  and  the  parties  proceed  to  a  hearing, 
all  the  allegations  of  the  answers  which  are  responsive  to  the  bill,  shall  be 
taken  for  true,  unless  they  are  disproved  by  two  witnesses,  or  by  one  witness 
with  pregnant  circumstances.  IB. 

Every  allegation  of  the  answer  which  is  not  directly  responsive  to  the  bill,  but 
sets  forth  matter  in  avoidance,  or  in  bar  of  the  plaintiffs  claim,  is  denied 
by  the  general  replication,  and  must  be  fully  proved  or  it  will  have  no  effect. 

IB. 

K  a  defendant  submit  to  answerjat  all,  he  must  answer  fully,  and  particularly, 
not  merely  limiting  his  responses  to  the  interrogatories  of  the  bill ;  but 
respond  to  the  whole  and  every  substantial  part  of  the  plaintiff's  case:  he  is 
not  however  bound  to  go  further  and  to  answer  interrogatories  asking  a  dis- 
closure of  matter,  no  way  connected  with,  or  material  to  the  case.  IB. 

When  the  answer  in  the  body  of  it,  purports  to  be  an  answer  to  the  whole  bill, 
but  the  respondent  declares,  that  he  is  entirely  ignorant  of  the  matters  con- 
tained in  the  bill,  and  leaves  the  plaintiff  to  make  out  the  best  case  he  can, 
or  uses  language  to  that  effect;  and  the  plaintiff  files  the  general  replication, 
all  the  allegations  of  the  bill  are  thus  denied,  and  put  in  issue  ;  and  conse- 
quently all  of  them  must  be  proved  at  the  hearing.  IB. 

The  rule  in  relation  to  trusts  by  implication,  or  operation  of  law,  is  by  no 
means  so  large,  as  to  extend  to  every  mere  voluntary  conveyance.  IB. 

Where  the  nature  of  the  transaction  charged  in  the  bill,  is  such  a  one  as  must 
have  been  altogether  within  the  knowledge  of  the  intestate,  the  administra- 
tor may  answer  as  he  is  informed  and  verily  believes,  but  the  answer  of  an 
administrator  must  always  betaken,  as  well  with  a  reference  to  the  reason 
given  for  his  belief,  as  to  the  nature  of  the  subject  of  which  he  speaks.  IB. 

A  purchaser  for  a  valuable  consideration  without  notice  will  not  be  disturbed 
in  equity.  IB. 

A  purchaser  with  a  knowledge  of  the  trust  becomes  himself  the  trustee,  and 
stands  in  the  place  of  the  vendor,  under  whom  he  claims.  IB. 


OF  MARYLAND.  273 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adtn'rs  D.  B.  N. — 1829. 

A  purchaser  with  notice,  from  another  purchaser  without  notice,  may  protect 
himself  by  the  want  of  notice  in  his  vendor. 

When  a  purchaser  cannot  make  title,  but  by  a  deed  which  leads  him  to  a 
knowledge  of  the  fact ;  and  more  especially,  when  the  deed  by  virtue  of 
which  he  takes,  recites,  or  directly  refers  to  the  instrument,  in  which  the 
trust  is  declared,  or  from  which  it  arises,  he  shall  be  deemed  cognizant  of  the 
fact,  and  a  purchaser  with  notice.  IB. 

Under  the  head  of  just  allowances,  it  has  long  been  the  course  of  this  court, 
to  allow  a  trustee  or  mortgager  in  possession,  for  all  necessary  expenses 
incurred  for  the  defence,  relief,  protection  and  repairs  of  the  estate.  And 
when  a  mortgager  thinking  himself  absolutely  entitled,  had  expended  con- 
siderable sums  in  repairs  and  lasting  improvements,  he  should  be  allowed 
the  value  of  them.  IB. 

The  estimate  of  the  value  of  such  lasting  improvements,  is  to  be  taken  as  they 
are,  at  the  time  of  accounting,  or  passing  the  final  decree ;  and  in  charging 
rents  and  profits  the  estimate  must  not  include  those  arising  exclusively 
from  such  improvements.  IB. 

This  was  an  appeal  from  Chancery.  The  bill  was  filed  by 
James  Neale,  administrator  de  bonis  non  of  Anthony  Hook,  and 
claimed  payment  for  certain  personal,  and  an  account  of  the 
rents  and  profits  of  certain  leasehold  property,  which  the  said 
Anthony  in  his  life  time  had  conveyed  in  trust  to  John  Hook, 
deceased,  and  which  was  alleged  to  be  in  the  possession  of 
the  representatives  of  John  Hook,  viz.  Edward  Hagthorp  and 
wife,  and  other  defendants,  purchasers  from  the  said  John  or  his 
representatives.  The  complainant  claimed  the  property  for  the 
purpose  of  distributing  it  according  to  law,  and  charged  the 
defendants  with  confederating  to  prevent  that  object.  Answers 
were  filed,  testimony  taken,  and/the  cause  set  down  for  hearing. 
But  as  the  merits  of  the  case  ijvere  not  reviewed  by  the  appel- 
late court,  the  appeal  having  been  dismissed  as  prematurely 
taken,  on  the  motion  of  the  appellees  ;  it  is  deemed  unnecessary 
to  publish  more  than  this  brief  notice  of  the  proceedings,  and  to 
refer  to  the  opinion  of  the  chancellor  which  follows  for  the  ma- 
terial facts  of  the  cause,  and  to  which  his  opinion  is  applied. 

BLAND,  Chancellor,  December  Term,  1826. 

This  case  standing  ready  for  hearing,  and  the  counsel  on  both 
sides  having  been  fully  heard,  the  proceedings  were  read  and 
considered. 

VOL.  I.— 35. 


17 1          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  el  «x.  tt  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

This  suit  is  brought  by  James  JVca/c,  alone,  as  administrator 
de  bonis  non  of  the  late  Anthony  Hook:  and,  from  the  pleadings 
and  proofs,  it  appears,  that  the  intestate,  Anthony  //oofc,  died  in 
June,  1798:  that  in  the  month  following,  administration  on  his 
goods,  chattels  and  credits,  was  granted  to  his  son,  John  Hook, 
who  died  in  September,  1800:  that  in  the  month  of  November 
following,  administration  de  bonis  non  of  the  personal  estate  of 
the  late  Anthony,  was  committed  to  his  widow,  Mary  Hook; 
who  died  sometime  after  the  year  1804:  and,  that  on  the  5th  of 
April,  1820,  administration  de  bonis  non  of  all  the  goods,  chat- 
tels and  credits  of  the  late  Anthony,  wras  granted  to  James 
Ncak;  who,  as  such,  on  the  15th  of  December  following, 
instituted  this  suit. 

According  to  the  law  of  England,  an  administrator,  de  bonis 
non,  cannot  call  the  representatives  of  the  previous  deceased 
administrator  of  his  intestate  to  account,  for  any  property  of  the 
intestate,  that  such  predecessor  may  have  converted  or  wasted; 
nor  can  he  claim  or  recover  any  thing  but  those  goods,  chattels, 
and  credits  of  his  intestate,  which  remain  in  specie,  and  are 
capable  of  being  clearly  and  distinctly  designated  and  distin- 
guished as  the  property  of  his  intestate.  3  Bac.  Abr.  1 9,  20. 
Hence,  it  is,  that,  in  a  Court  of  Equity  particularly,  an  executor 
or  administrator,  who  is  there  considered  as  a  trustee  for  the 
creditors,  legatees,  and  next  of  kin  of  the  deceased,  is  expected 
and  required  to  preserve  the  property  of  the  deceased  apart 
from  his  own,  and  by  itself  to  give  it,  as  is  said,  an  ear  mark, 
that  it  may  be  always  known  and  readily  traced  to  any  one, 
into  whose  hands  it  may  happen  to  fall :  and  if  he  does  so  the 
court  will  do  every  thing  that  can  be  done  to  protect  and  assist 
him.  3  Mer.  42,  Salk.  306. 

According  to  our  provincial  testimentary  system,  an  adminis- 
trator de  bonis  non  might,  under  certain  circumstances,  have 
had  his  predecessor  cited  before  the  commissary  and  compelled 
to  account.  1715,  ch.  39,  sec.  3.  Dep.  Com.  Guide,  55,  57.  But 
at  present,  the  only  remedy  against  an  administrator  or  his 
representatives,  for  any  waste,  or  misapplication  of  the  effects 
of  the  deceased,  is,  by  an  action  at  law  upon  his  administration 


OF  MARYLAND.  275 


Hagthorp  et  itx.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N — 1829. 

bond  by  any  one  interested.  For,  it  is  expressly  declared  by 
our  present  law,  that  the  authority  conferred,  by  letters  of 
administration  de  bonis  won,  shall  be  to  administer  all  things 
described  in  the  act  as  assets,  not  converted  into  money,  and  not 
distributed  or  delivered,  or  retained  by  the  former  executor  or 
administrator,  under  the  direction  of  the  Orphans  Court,  1798, 
JVo.  101,  ch.  14,  sec.  2. 

Hence,  it  follows,  that  this  plaintiff  is  incompetent  to  demandA 
in  the  representative  character,  in  which  he  sues,  any  thing,  » 
but  those  goods,  chattels  and  credits,  which  his  letters  authorise 
him  to  administer;  that  is,  the  chattels  real  and  personal  pro- 
perty of  his  intestate,  which  remain  undisposed  of  by  either  of 
the  previous  administrators,  John  or  Mary;  or  which  have  been, 
and  continue  to_beJieJd4mac,C£>unted--fep  by  -any  one,  as  trustee 
or  agent  of  the  late  Anthony  Hook, .his.- intestate..  The  state- 
TnTrntTand  allegations  of  these  very  obscure  original  and  amend- 
ed bills,  must,  therefore,  be  taken  subject  to  the  limited  rights 
of  the  representative  character  of  this  plaintiff. 

It  appears,  from  the  pleadings,  in  this  cause,  that  some  of  the 
next  of  kin,  and  distributees  of  the  late  Anthony  Hook,  under 
an  impression,  that  the  chattels  real  of  the  deceased,  had  vested 
absolutely  in  them,  have  disposed  of,  or  attempted  to  make  a 
final  disposition  of  the  whole,  as  if  such  chattels  had  been 
immediately  cast  into  their  hands  by  the  mere  operation  of 
law :  in  like  manner  as  the  real  estate  of  an  intestate,  is  at  once 
cast  upon  his  heirs.  If  these  next  of  kin  acquired,  at  once,  by 
the  act  of  the  law  alone,  a  legal  right  to  these  chattels  real,  by 
virtue  of  which  they  might,  either  concurrently  or  independently 
of  the  administrator,  dispose  of  them,  then,  as  the  joint  or  inde- 
pendent holders  of  the  property  in  controversy,  they  ought  to 
be  made  parties  to  this  bill ;  and  if  they  have  acquired  such  a 
legal  right,  and  have  actually  disposed  of  these  chattels,  then, 
it  is  no  less  evident,  that  all  claim  against  these  defendants  is,  so 
far,  entirely  at  an  end.  In  these  points  of  view  the  allegations 
of  the  bill,  in  relation  to  these  next  of  kin,  of  the  intestate, 
present  some  important  preliminary  enquiries. 


CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  ct  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

The  real  estate  of  an  intestate,  devolves  at  once  and  entirely, 
upon  his  heirs,  by  the  mere  act  of  the  law  itself.  But  his 
personal  property  is,  by  the  law  itself,  cast  upon  no  one;  nor 
does  the  legal  ownership  of  it  vest,  immediately,  in  any  person. 
Because,  such  legal  title  can  only  vest  in  an  administrator;  who 
alone,  is  considered  as  the  legal  representative  of  the  intestate, 
'  as  to  his  chattels  real,  and  personal  estate.  In  the  interval  of 
time,  between  the  death  of  the  intestate  and  the  granting  of 
administration,  the  legal  right  to  such  personal  property  is  in 
suspense,  or  in  the  keeping  of  the  law,  and  vested  in  no  one. 
During  that  interval,  there  is  no  person  who  can  sue  or  be  sued 
for  it;  and,  hence,  it  has  been  held,  that  a  person  who  had, 
alter  the  death  of  the  intestate,  obtained  possession  of  his 
personal  property,  could  not  have  it  quieted  or  matured  into  a 
right,  by  the  lapse  of  any  length  of  time,  even  as  much  as  forty 
years  uninterrupted  possession,  before  the  granting  of  letters  of 
administration;  because,  the  statute  of  limitations  could  not  be 
allowed  to  operate  at  all,  until  the  legal  title  was  vested  in  some 
one;  and  there  was  a  person  lawfully  clothed,  with  a  capacity 
to  sue  for,  hold  and  dispose  of  such  property,  4  Bac.  Jlbr.  479, 
Salk.  421. 

Our  statute  of  distributions,  like  that  of  England,  3  Bac. 
Jlbr.  72,  directs  the  goods,  chattels  and  credits  of  those,  who 
die  intestate,  to  be  committed  to  an  administrator,  whose  powers 
and  duties  are  prescribed.  He  has  a  yested  interest  in  the 
personal  estate  of  the  deceased,  1  P.  Will.  43 :  and  is  directed 
to  collect  and  take  the  whole  of  it  into  his  possession,  which,  or 
the  proceeds  of  the  sales  thereof,  he  is,  in  the  first  place,  to 
apply  to  the  satisfaction  of  all  the  debts  due  from  the  intestate, 
and  then,  but  not  until  then,  he  is  to  distribute  the  surplus  among 
the  next  of  kin  of  the  deceased.  In  the  construction  of  this 
statute,  it  has  been  held,  that  although  the  creditors  of  the 
deceased  are  the  first  and  special  objects  of  its  regard;  yet, 
that  the  next  of  kin,  among  whom  the  surplus  is  to  be  distributed, 
take  an  interest  which  vests  in  them,  by  operation  of  law  imme- 
diately. It  is  considered  as  a  species  of  chose  in  action  of  an 
indefinite  value :  in  nature  of  a  present  debt,  of  an  unascertained 


OF  MARYLAND.  277 


Hagthorp  dux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

amount  payable  at  a  future  day.  3  Mod.  59.  1  Show.  2,  25. 
2  Show.  407.  Pre.  Cha.  21.  IP.  Will.  380.  4  Fes.  665.  This 
interest  vests  in  those  who  are  the  next  of  kin  of  the  deceased 
at  the  time  of  his  death :  not,  however,  in  exclusion  of  a  posthu- 
mous child,  who  is  regarded  as  a  then  living  though  unborn 
distributee,  and  therefore,  should  any  of  them  die  before  the 
distribution  of  the  surplus  is  actually  made,  his  share  will  not 
be  sunk  into  the  estate  of  the  intestate :  but  go  to  his  own  legal 
representatives  in  like  manner  as  his  other  personal  property, 
Dep.  Com.  G.  114.  2  P.  Will.  446. 

Hence,  it  is  clear,  that  in  no  case,  nor  under  any  circum- 
stances, can  any  one  as  next  of  kin  of  the  intestate,  rightfully 
and  legally  make  title  to,  or  obtain  possession  of  his  distributive 
shard,  but  through  and  from  the  administrator:  who,  in  equity, 
is  regarded  as  a  trustee  for  creditors  arid  the  next  of  kin;  and 
as  such  may,  in  Chancery,  be  called  to  account  by  all  or  any  of 
them,  1  //.  <$<•  /.  151.  5  Fes.  743.  And  every  one  who  takes 
possession  of  personal  property  of  an  intestate,  after  his  decease, 
may  be  sued  at  law  by  a  creditor  as  an  executor  de  son  tort, 
and  charged  accordingly;  and  in  equity,  he  will  be  considered 
as  a  trustee,  and  held  accountable  to  the  administrator,  no 
matter  how  long  he  may  have  had  possession,  before  the  admi- 
nistration was  granted.  2  Rand.  Rep.  397.  2  Desan.  232.  The 
utility  and  necessity  of  having  all  the  personal  estate  of  a 
deceased,  placed  in  the  hands  of  an  administrator,  and  the  prin- 
ciple of  law  that  neither  a  creditor,  nor  a  distributee  of  an 
intestate  could  obtain  any  right7 to  the  personal  estate  of  the 
deceased  in  any  other  manner,  than  from  an  administrator,  has 
been  very  strongly  recognized  by  the  legislature  more  than  a 
century  past. 

By  the  act  of  1719,  ch.  14,  sec.  7,  it  is  declared,  that  many 
widows,  or  others  having  the  deceased's  effects  in  their  hands, 
and  right  to  the  administration  thereof,  designedly  suffer  other 
persons  to  administer,  whose  mouths  are  easily  stopped,  with 
part  of  the  estate's  being  delivered  to  them,  and  bring  only  such 
part  of  the  appraisement  to  the  great  dishonour  of  the  deceased, 
and  deceit  of  the  living;  for  prevention  whereof,  as  well  as  of 


278          CASES  IN  THE  COURT  OF  APPEALS 
Hagthorp  et  we.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

frequent  tedious  suits,  for  the  detecting  such  concealments,  it  is 
enacted,  that  the  court  may,  in  a  summary  way,  cite  such  per- 
sons before  it,  and  examine,  and  decide  on  the  matter.  Here 
the  distributees,  the  widow  and  others,  having  a  right  to  the 
administration,  who  are  the  next  of  kin,  are  specially  desig- 
nated, and  it  is  expressly  declared,  that  they  shall  not  retain, 
or  hold  any  of  the  personal  estate  of  the  deceased :  and  if  they 
do  conceal  any  of  it,  they  are  made  liable  in  a  summary  way  as 
wrong  doers. 

If  the  law  were  otherwise;  and  if  each  creditor,  and  every 
one  next  of  kin,  were  allowed  to  help  himself,  to  what  he 
thought  his  due ;  to  seize  upon,  and,  in  any  manner  by  his  own  act 
alone,  acquire  a  legal  right  to  the  personal  property  of  the  intes- 
tate; the  greatest  confusion  would  ensue,  and  the  most  monstrous 
frauds  might  be  perpetrated;  no  letters  of  administration  would 
be  taken  out,  in  any  case ;  but  on  the  death  of  every  one  who 
had  left  any  personal  estate,  worth  contending  for,  a  disorderly 
scramble  would  take  place;  and  those  residents  at  a  distance, 
infants,  and  all  others  who  were  unable  to  take  care  of  their 
own  interests,  would  be  openly  and  wantonly  defrauded,  as  this 
venerable  act  declares,  "  to  the  great  dishonour  of  the  dead 
and  deceit  of  the  living."  Such  a  course  could  not  be  tolerated 
in  any  shape  or  for  an  instant. 

Hence,  the  indispensable  necessity  in  all  cases  of  a  regular 
administration,  and  of  compelling  all,  as  well  creditors,  as  next 
of  kin,  to  resort  for  the  payment  of  their  claims  and  distributive 
portions,  to  an  administrator.  In  this  case,  it  is  not  pretended, 
that  these  next  of  kin  of  Jlnthony  Hook,  obtained  any  thing, 
any  right  whatever  from  his  administrators;  consequently, 
having  derived  no  right  from  either  of  the  administrators;  and 
none  having  been  cast  upon  them  by  mere  operation  of  law: 
they  never  had  the  power,  in  any  manner,  legally  to  dispose  of 
any  of  the  personal  estate  of  the  deceased;  or  to  do  any  act 
which  could  at  all  affect  the  rights  of  the  present  plaintiff. 

Leave  was  asked  and  obtained  on  the  7th  of  February, 
1823,  to  make  James  Hook,  the  son  of  the  late  John  Hook,  a 
defendant;  who,  on  the  same  day,  filed  his  answer  to  the 


OF  MARYLAND.  279 


Hagthorp  et  ux.  ft  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

amended  bill;  and  in  a  kind  of  amended  or  duplicate  bill,  filed 
on  the  23d  of  July,  1824,  James  Hook,  is  once  incidentally 
spoken  of  as  a  defendant ;  no  process  was  ever  prayed  against 
him  ;  but  by  an  agreement,  filed  on  the  4th  of  November,  1826, 
he  is  admitted  to  be  a  party  defendant.  This  person  is  no 
otherwise  noticed  in  the  proceedings;  no  charge,  whatever,  has 
been  made  against  him;  nor  does  it  appear  that  he  can,  in  any 
degree,  be  made  liable  for  any  part  of  the  subject  in  contro- 
versy ;  either  in  his  individual  capacity,  or  as  heir,  or  next  of 
kin  of  his  father,  the  late  John  Hook,  or  of  his  grandfather  the 
late  Jlnthony  Hook.  The  presence  of  this  defendant,  James 
Hooky  it  appears  to  be  in  no  way  necessary ;  and,  therefore,  I 
shall,  for  the  present,  take  no  further  notice  of  him. 

The  bills,  through  a  considerable  portion  of  them,  seem  to 
consider  the  next  of  kin  and  distributees :  or,  as  it  calls  them, 
in  relation  to  these  chattels,  the  heirs  of  the  late  Jlnthony  Hook, 
to  be  in  some  way  or  other  parties  to  this  suit:  but  they  have 
neither  been  made  plaintiffs,  nor  defendants  as  such ;  and  there- 
fore, all  that  has  been  said,  or  proved  about  them,  and  their 
agreements,  must  be  rejected  as  mere  surplusage,  and  entirely 
foreign  to  the  matter  now  under  consideration.  William  Mc- 
Meclien,  a  defendant,  says,  he  answers  "  the  bill  of  complaint 
of  James  JYeale  and  others,  representatives  of  Jlnthony  Hook, 
deceased :"  and  in  the  body  of  his  answer,  he  says,  "  during 
all  which  time  several  of  the  complainants  resided  in  the  neigh- 
bourhood of  the  said  land:"  others  of  the  answers  seem  to 
have  an  eye  to  some  other  complainants,  besides  Neale.  These 
respondents  appear,  in  this  respect,  to  have  turned  their  atten- 
tion to  some  of  the  irrelevant  circumstances  related  in  the  bill, 
without  sufficiently  regarding  its  substance.  But  all  such  ex- 
pressions and  allusions,  in  the  answers,  must,  in  like  manner,  be 
rejected  as  surplusage. 

So  much  as  to  the  excrescences,  the  foreign  matter,  and  mere 
careless  verbiage  of  the  bill,  and  some  of  the  answers.  But, 
before  we  can  proceed  to  consider  the  merits  of  the  case,  it 
will  be  necessary  to  ascertain  from  these  pleadings,  as  accu- 
rately as  practicable,  what  is  the  matter  as  to  which  the  parties 


CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  we.  et  al.  TS.  Hook's  Adm'rs  D.  B.  N—  1829. 


are  at  imic  ;  and  \\hat  part  of  the  allegations  of  each  had  been 
admitted,  taken  for  true,  or  is  to  be  sustained  or  combattcd  by 
proof.  In  relation  to  these  matters  it  will  be  necessary  to 
explain,  recollect,  and  apply  some  of  the  general  rules  in  rela- 
tion to  answers. 

The  first  of  these  general  rules,  which  have  a  bearing  upon 
this  case  is,  that  where  the  general  replication  is  put  in,  and 
the  parties  proceed  to  a  hearing,  all  the  allegations  of  the  an- 
swers, which  are  responsive  to  the  bill,  shall  be  taken  for  true; 
unless  they  are  disproved  by  two  witnesses,  or  by  one  witness, 
with  pregnant  circumstances.  The  answer  to  this  extent  is 
considered  as  evidence,  and  conclusive,  unless  disproved  ;  even 
although  the  defendant  may  have  a  direct  and  palpable  interest 
in  establishing  the  truth  of  what  he  advances.  3  Wheat.  527. 
An  answer  is  only  so  far  responsive  as  it  answers  to  a  material 
statement,  or  charge  in  the  bill,  as  to  which,  a  disclosure  is 
sought;  and  which  is  the  subject  of  parol  proof;  but  no  further. 
Where  a  deed,  or  instrument  of  writing  is  necessary  to  esta- 
blish any  right,  and  the  bill  enquires  for  the  evidence  of  such 
right,  the  answer,  unaccompanied  and  unsupported  by  such 
deed  or  writing,  will  be  no  evidence,  although  it  should  directly 
respond  to  the  bill  ;  because  the  answer  is  only  in  the  nature  of 
parol  evidence;  and  in  such  case,  evidence  of  a  higher  grade  is 
required  by  law.  5  Harr.  <§<•  Johns.  381. 

But  where  the  bill  asks  for  the  production  of  evidence, 
which  from  the  nature  of  the  plaintiff's  case,  he  has  a  right  to 
claim,  that  may  be  necessary  and  useful  to  him  in  other  cases 
beside  the  one  then  under  consideration;  an  answer  to  such  a 
bill  is  not  responsive,  which  merely  asserts  the  facts  without 
saying  any  thing  of  the  evidence  of  its  existence,  or  the  means 
of  obtaining  it.  And,  where  a  defendant,  by  his  answer,  asserts 
a  right  affirmatively  in  opposition  to  the  plaintiff's  demand,  he 
must  establish  it  by  proof;  or  the  assertion  will  be  disregarded  : 
for,  a  defendant  cannot  be  permitted  to  swear  himself  into  a 
title  to  the  plaintiff's  estate.  1  Wash.  225.  I  Mun.  395.  2 
Jo/in,  C.  Rep.  87.  2  Ev.  Poth.  157.  But  where  an  administra- 
tor is  called  upon  to  answer  certain  matters,  which  appear  to 


OF  MARYLAND.  281 


Hagthorp  et  ux..  et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

have  rested  exclusively  within  the  knowledge  of  his  intestate,  it 
will  be  sufficient  that  he  swears  as  he  is  informed  and  helieves ; 
Carnan,  Ex'rs  vs.  Vansantfs  administrators,  1807,  J\?I.  S.,  but 
such  an  answer  is  to  be  taken  with  reference  to  the  reasons 
given  for  his  belief;  for,  if  the  reasons  are  futile,  and  especial- 
ly if  the  alleged  belief  be  in  a  high  degree  irreconcileable  with 
the  admitted,  or  established  circumstances  of  the  case,  the  an- 
swer cannot  be  credited :  nor  be  allowed  thus  loosely  to  swear 
away  the  equity  of  the  bill.  Tong.  vs.  Oliver  and  others,  1809, 
M.  S.  9  Can.  160. 

A  second  general  rule  is,  that  every  allegation  of  the  answer, 
which  is  not  directly  responsive  to  the  bill,  but  sets  forth  mat- 
ter in  avoidance,  or  in  bar  of  the  plaintiff's  claim,  is  denied  by 
the  general  republication,  and  must  be  fully  proved,  or  it  will 
have  no  effect. 

A  third  general  rule  is,  that,  if  the  defendant  submits  to  an- 
swer at  all, he  must  answer  fully,  and  particularly:  not  merely 
limiting  his  responses  to  the  interrogatories  of  the  bill :  but  re- 
spond to  the  whole  and  every  substantial  part  of  the  plaintiff's 
case.  1  John,  C.  Rep.  75,  107.  He  is  not  however,  bound  to  go 
further,  and  to  answer  any  interrogatory  asking  a  disclosure  of 
matter  no  way  connected  with,  or  material  to  the  case.  If  the 
answer  be  in  any  respect  evasive,  or  insufficient,  the  plaintiff  may 
except  to  it;  and  thus  extract  from  his  opponent  a  full  and  perfect 
answer.  But  to  this  general  rule  there  is  a  modification,  the  na- 
ture and  bearing  of  which  may  be  sufficiently  illustrated  by  one 
or  two  instances:  a  defendant  to7  a  bill  of  discovery,  answered  a 
portion  of  it,  and  as  to  all  the  pther  matters  therein  set  forth,  he 
answered  and  said,  that  he  had  no  other  knowledge  of  them,  than 
what  he  had  obtained  confidentially  as  counsel;  and  therefore 
declined  answering  further :  this  answer  was  deemed  sufficient; 
and  again  a  defendant  answered  as  to  part,  and  as  to  the  residue 
relied  upon  the  statute  of  limitations:  this  answer  was  also 
held  to  be  sufficient.  In  such  cases,  a  part  of  the  answer  per- 
forms the  office  of  a  plea;  and  the  defendant  thus  makes  defence 
to  the  whole  case,  by  a  disclosure  of  all  the  facts  so  far  as  he  is 
bound  so  to  respond;  and  for  the  residue,  by  presenting  such  an 
VOL.  I.— 36. 


289          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  ft  MX.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N — 1829. 

equitable  bar  to  the  plaintilPs  claim,  as  is  a  sufiirimt  excuse  for 
not  answering  in  the  manner  required  Inj  tlic  bill.  The  exact 
compass  of  this  modification  of  the  rule,  that  if  a  defendant  sub- 
mits to  answer  at  all,  he  must  answer  fully,  remains  yet  to  be 
adjusted.  2  Mad.  Ch.  339.  Much  lias  been  said  upon  the 
subject;  but  as  the  cases  in  relation  to  this  "distracted  point," 
as  it  has  been  called,  have  no  bearing  upon  the  case  now  under 
consideration,  they  have  been  thus  generally  noticed  merely 
to  prevent  misapprehension. 

A  fourth  general  rule,  is  one  which  grows  out  of  the  third 
rule,  that  exacts  a  full  answer:  and  requires  to  be  attentively 
considered  in  this  case :  it  is,  that  where  the  defendant  fails  to 
answer  any  of  the  material  allegations  of  the  bill,  such  unan- 
swered allegations  shall,  at  the  hearing,  be  taken  to  be  true,  (a) 
Thus  were  the  bill  demands  the  delivery  of  two  pieces  of  pro- 
perty, and  the  answer  makes  defence  as  to  one,  but  is  totally 
silent  as  to  the  other.  In  such  case  according  to  this  rule, 
the  bill  may  be  taken  pro  confesso  for  that,  as  to  which  the 
answer  is  silent;  and  the  plaintiff  may  obtain  a  decree  according- 
ly. The  propriety  of  this  rule  has,  however,  been  questioned; 
and  therefore  it  stands  in  need  of  all  the  support  it  can  derive 
from  authority,  reason,  and  analogy. 

If,  upon  exceptions,  the  answer  is  held  to  be  insufficient,  the 
defendant  will  be  ordered  to  answer  more  fully :  and  if  he  fails 
to  do  so,  in  England,  sequestration  will  go  against  his  estate. 
The  plaintiff  need  not,  however,  stop  there,  but  may  proceed  to 
have  his  whole  bill  taken  pro  confesso;  for  the  court  is  in  the 
habit  of  considering  an  insufficient  answer  as  no  answer.  2  Jltk. 
21.  3  Fes.  209.  1  F.  and  B.  367.  2  Fes.  and  B.  258.  In  this 
state,  obedience  to  the  order  directing  a  more  perfect  answer, 
upon  exceptions  being  sustained,  is  usually  enforced  by  attach- 
ment; but,  as  in  England,  on  the  defendant's  failing  to  answer  as 
ordered;  and  the  process  of  attachment  failing  to  coerce  an  an- 
swer, as  required,  the  whole  bill  may  be  taken  pro  confesso.  3 
Vcs.  372  209;  so,  where  the  defendant  had  answered,  and  the 

(a)  The  fourth  general  rule  above  stated  has  been  denied  by  the  appel- 
late court  in  the  late  case  of  Warfitld  vs.  Catnbrill. 


OF  MARYLAND.  283 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

plaintiff  then  amended  his  bill,  introducing  new  matter,  he  is 
entitled  to  an  answer  to  such  new  matter;  because,  an  amend- 
ed bill  is  a  part  of  the  original  bill,  and  the  defendant's  answer 
thereto  is  a  part  of  his  original  answer;  and  consequently,  the 
defendant  is  as  much  bound  to  answer  the  amended  bill,  as  to 
answer  each  portion  of  the  original  bill  itself.  Therefore,  if  he 
fails  to  do  so,  the  plaintiff  may  proceed,  according  to  the  course 
of  the  court,  and  have  his  whole  bill  taken  pro  confesso.  4  Ves. 
619.  3  John.  C.  Rep.  410.  For,  as  it  has  been  said,  if  the 
plaintiff  should  not  be  entitled  to  such  a  decree  under  those  cir- 
cumstances, then  the  authority  of  this  court  would  be  very  de- 
fective and  the  justice  of  it  might  be  eluded.  2  Eq.  Ca.  Jib. 
179.  1  Har.  Pr.  Ch.  277.  2  Jltk.  21. 

A  plea  is  a  special  answer  to  a  bill,  differing  in  this  from 
an  answer  in  common  form,  as  it  demands  the  judgment  of 
the  court,  in  the  first  instance,  whether  the  special  matter 
urged  by  it,  does  not  debar  the  plaintiff  from  his  title  to 
that  answer,  which  the  bill  requires:  but  where,  from  the 
matter  set  forth  in  the  bill,  an  answer  is  required  to  support 
a  plea,  it  will  be  overruled  without  such  an  answer;  upon  the 
ground,  that  the  matters  not  thus  answered  are  taken  for  true.  As 
where  the  bill  sets  out  a  claim  arising  on  a  mortgage  made 
more  than  twenty  years  before  the  institution  of  the  suit,  and 
then  goes  on  to  shew,  that  there  have  been  such  partial  payments, 
or  recent  acknowledgments,  as  would  take  the  case  out  of  the 
statute  of  limitations,  were  it  pleaded.  In  such  case,  a  plea  of 
the  statute  of  limitations  must  be  supported  by  an  answer,  de- 
nying such  partial  payments  arid  recent  acknowledgments;  for, 
otherwise,  those  circumstances,  not  being  denied  by  the  plea, 
would  be  taken  for  true,  if  not  denied  by  way  of  answer;  and 
would  show,  that  the  case  had  been  taken  out  of  the  statute.  2 
Scho.  fy  Lef.  725. 

These  authorities  appear  satisfactorily  to  sustain  this  rule; 
and  to  shew,  that  the  defendant  cannot  be  allowed,  with  impu- 
nity or  advantage  to  himself,  to  refuse  to  answer  at  all;  or,  in 
any  manner  or  form,  to  stop  short,  or  to  omit  to  answer  any  ma- 


28 1          CASES  IN  THE  COURT  OF  APPEALS 

Ilagthorp  et  «x.  etal.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

tcrial  part  of  the  plaintiff's  case:  and,  that  the  consequence  of 
such  a  ivfusal  or  failure,  is,  that  the  whole  bill,  or  so  much  of 
it  as  remains  unanswered,  may,  at  the  hearing,  be  taken  pro 
confer- to. 

The  proceedings  in  Chancery  have  been  formed  according 
to  the  course  of  the  civil  law,  in  some  respects;  and  analogous 
to  the  common  law  in  others;  and,  as  to  all  matters  of  substance, 
there  must  be  the  same  strictness  in  pleading  in  equity,  as  in 
hm.  .Mil.  Pr.  232.  Hence,  it  is  not unfrequent,  where  a  case 
arises,  as  to  which  former  decisions  furnish  no  safe  guide,  to 
have  recourse  to  the  illustrative  analogies  of  the  common  law. 
2  Atk.  21.  3  Jltk.  589.  6  Fes.  594.  9  Ves.  55.  11  Ves.  292. 
Supposing,  then,  that  in  relation  to  this  subject,  there  was  a 
total  absence  of  all  manner  of  precedent  and  authority,  the 
analogous  course  of  the  common  law  will  be  found  to  afford 
much  and  strong  light. 

At  common  law,  there  are  two  defaults;  the  one  before,  and 
the  other  after  appearance.  The  consequence  of  the  first,  in 
England,  is,  that  the  defendant  may  be  outlawed;  and  in  this 
State,  in  many  cases,  is,  that  an  attachment  may  go  against  his 
estate.  The  consequence  of  the  second  default,  or  the  defend- 
ant not  putting  in  any  plea  at  all,  is,  that  the  plaintiff  may  have 
a  judgment  by  nil  dicit.  The  plea  is  called,  at  common  law, 
the  answer  of  the  defendant:  and,  if  he  fails  to  answer,  judg- 
ment is  awarded  against  him  on  the  ground,  that  he  has  thus 
tacitly  admitted,  or  confessed  the  case  of  the  plaintiff,  and  left 
him  nothing  to  litigate  or  to  prove.  So,  in  equity,  after  an  ap- 
pearance, the  taking  a  bill  pro  confesso,  where  no  answer  has 
been  put  in,  or  no  sufficient  answer,  after  exceptions  have  been 
sustained,  is  analogous  to  the  taking  the  declaration  for  true, 
where  the  defendant  has  put  in  no  plea  at  all,  or  it  has  been 
held  insufficient  on  demurrer.  2  Jltk.'21. 

It  is  a  rule  at  common  law,  that  every  plea  must  answer  the 
whole  declaration,  or  at  least  every  material  part  of  it,  which 
goes  to  constitute  the  gist  of  the  action.  But,  the  defendant 
may  fail,  or  purposely  decline  to  plead,  or  answer  to  every  part 
of  the  declaration :  in  which  case  the  plaintiff  may  join  issue 


OF  MARYLAND.  285 


Hagthorp  et  ux   et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

on  the  plea,  and  take  his  judgment  for  the  unanswered  part  as 
by  nil  dicit.  And  we  are  told,  that  it  is  frequently  judicious  to 
plead  only  to  part,  or  to  admit  a  part  of  the  cause  of  action  in 
order  to  save  the  costs  of  the  trial  of  such  matter:  for,  nothing 
can  be  tried,  that  is  not  put  in  issue;  and  the  defendant,  by  de- 
clining to  answer  a  part,  deprives  the  plaintiff  of  the  power  to 
burthen  him  with  the  costs  and  expense  of  proving  that,  on  a 
trial,  which  he  has  not  denied,  and  put  in  issue.  1  Chit.  Plead. 
509.  So,  in  equity,  where  the  defendant  fails,  or  declines  an- 
swering any  material  part  of  the  plaintiff's  bill,  as  to  which  he 
seeks,  and  may  obtain  relief,  it  amounts  to  a  tacit  admission  of 
so  much:  and,  such  part  of  the  bill  may,  therefore,  be  taken 
pro  confesso:  and,  if  the  declining  to  answer  a  part  of  the  cause 
of  action  may,  from  any  motives,  be  judicious  at  common  law, 
certainly  a  defendant  in  Chancery  may  be  induced  for  like  rea- 
sons to  pursue  a  similar  course;  since  no  costs,  or  expense,  can 
be  allowed  in  Chancery,  any  more  than  at  law,  for  the  proof  and 
trial  of  any  matter  not  put  in  issue.  2  P.  Will.  557.  1 9  Johns. 
Rep.  505.  2  Desan.  172.  Upon  the  whole,  this  rule  in  rela- 
tion to  pleadings  in  equity,  appears  to  be  as  fully  sustained  by 
analogy  to  the  course  of  the  common  law,  as  by  direct  and  po- 
sitive authority. 

There  is,  in  many  instances,  a  strong  disposition  manifested 
by  courts  of  Chancery  to  harmonise  their  proceedings,  in  prin- 
ciple, with  the  positive  rules  of  the  common  law.  But,  where 
the  Legislature  have  prescribed  rules  of  proceeding  for  the 
court  itself;  and  cases  occur  within  the  spirit,  but  not  within  the 
letter  of  them,  the  Chancellor  feels  himself,  not  merely  invited, 
for  the  preservation  of  harmony,  but  becomes  sensible  of  a  duty 
to  conform,  upon  the  ground,  that  equity  is  bound  to  follow  the 
law  in  spirit  and  in  principle. 

In  equity,  the  consequences  of  a  default  before  appearance, 
when  pursued  to  the  utmost,  seldom  enabled  the  plaintiff  to  ob- 
tain the  precise  relief  he  was  in  quest  of;  because,  there  could 
be  no  adjudication  upon  his  case,  applying  the  remedy,  as  speci- 
fic performance,  or  the  like,  exactly  to  suit  it,  until  the  de- 
fendant had  appeared,  and  the  allegations  of  the  bill  had  been 


•..Mi          CASES  IN  THE  COURT  OF  APPEALS 

llagthorpetwx.  etui.  vs.  IlookV   \.li..'r>  D.   I1,.  N.— 1839. 

taken  for  true  or  established.  The  English  courts,  evidently 
under  a  strong  sense  of  the  necessity  of  their  being  some  better 
mode  of  attaining  justice,  than  by  a  sequestration  of  the  defend- 
ant's estate,  have  carried  the  doctrine,  in  relation  to  substituted 
and  constructive  summons,  full  as  far  as  was  within  the  compass 
of  judicial  power;  further  than  it  ever  was  in  this  State;  and 
yet,  short  of  the  point  of  manifest  and  general  utility.  In  the 
year  1718,  the  Legislature  partially  interposed,  and  by  the  act 
of  5  Geo.  2,  ch.  25,  provided  the  means  of  enabling  a  plaintitl' 
to  proceed  against  a  defendant,  who  had  not  entered  his  ap- 
pearance, and  have  his  bill  taken  pro  confesso;  which  could  not 
be  done  in  equity  until  then.  2  Jltk.  23.  This  statute  was  in- 
troduced and  used  in  this  state,  Kil.  Rep.  189,  and  seems  to 
have  been  the  original  settler  among  us ;  whence  sprang  that 
numerous  family  of  legislative  enactments  upon  this  subject,  to 
be  found  in  our  statute  book,  from  the  year  1773  down  to  the 
present  time. 

The  following  is  a  list  of  the  acts  of  Assembly  under  which  a 
bill  may  be  taken  pro  confesso  against  a  defendant,  who  has  not 
been  summoned  nor  has  appeared:  1773,  ch.  7,  sec.  3.  1785, 
eh.  72,  sec.  30,  31.  1787,  ch.  30,  sec.  1.  1790,  ch.  38,  sec.  3. 
1792,  ch.  41,  sec.  2,  4.  1794,  ch.  60,  sec.  2,  3,  5,  9.  1795,  ch. 
88,  sec.  1,  2.  1797,  ch.  114,  sec.  2,  3.  1799,  ch.  79,  sec.  3,  4. 
1804,  ch.  107,  sec.  2.  1820,  ch.  161.  These  acts  provide  for 
all  the  cases  that  have,  or,  as  it  is  supposed,  can  occur;  absent 
or  absconding  defendants;  non-resident  defendants,  who  are 
either  non  compos,  infants,  or  adult;  absent  or  non-resident  mort- 
gagers; defendants  who  evade  the  service  of  the  subpoena;  the 
case  where  there  are  two  or  more  defendants,  of  one  or  some  of 
them  being  non-residents;  the  case  of  a  bill  of  revivor,  where 
the  party  had  removed  out  of  the  State,  &c.  And  where  a  party 
had  been  returned  summoned,  but  had  failed  or  refused  to  appear 
and  answer,  the  acts  of  1785,  ch.  72,  sec.  1 ,  9.  1799,c/i.79,  sec. 
1,2.  1820,  ch.  161,  provided  that  the  plaintiff  may,  according 
to  a  prescribed  mode,  have  his  bill  taken  pro  confesso. 

According  to  the  course  of  the  English  court,  there  are  cases 
in  which  an  implied  confession  is  held  to  be  a  sufficient  ground 


OF  MARYLAND.  v  287 

Hagthorp  et  vx.  ct  al.  us.  Hook's  Adm'rs  D.  B.  N.— 1829. 

for  a  decree :  as  where  the  defendant  appears,  and  has  been 
attached  for  not  answering,  and  is  brought  three  times  from 
prison  into  court,  and  has  the  bill  read  to  him,  and  refuses  to  an- 
swer ;  such  public  refusal  in  court  amounts  to  a  confession  of 
the  whole  bill.  So  too,  where  a  person  appears  and  departs 
without  answering,  after  which  process  has  gone  against  him 
to  sequestration,  there  also  the  bill  is  taken  pro  confesso ;  be- 
cause, it  is  presumed  to  be  true  when  he  has  appeared  and  de- 
parts in  despite  of  the  court,  and  withstands  all  its  process 
without  answering.  For.  Rom.  36.  But,  these  modes  of  hav- 
ing a  bill  taken  pro  confesso,  having  been  deemed  in  many  re- 
spects too  oppressive,  or  unnecessarily  tedious,  1  John.  C.  Rep. 
8,  more  easy  and  expeditious  modes  have  been  provided  by 
the  acts  of  1785,c/i.  72,  sec.  20.  1779,c/i.79,sec.2,  9;  and  1820, 
ch.  1 6 1 ,  sec.  1 .  By  these  acts,  if  a  defendant,  who  has  appeared, 
fails  to  demur,  plead,  or  answer,  according  to  the  rules  of 
court,  within  a  limited  time,  the  bill  may  be  taken  pro  con- 
fesso. 

At  law,  where  the  nature  and  amount  of  the  plaintiff's  demand 
may  be  distinctly  ascertained  from  the  declaration,  as  in  debt 
assumpsit,  upon  a  promissory  note,  or  the  like,  the  judgment  by 
nil  dicit,  is  final;  but  in  actions  for  the  recovery  of  damages 
only,  it  is  not  so;  because  the  amount  claimed  is  uncertain;  and, 
therefore,  an  enquiry  must  be  made,  and  proof  heard  as  to  the 
quantum  which  the  plaintiff  is  entitled  to  recover.  Suits  in  equity 
are  susceptible,  in  some  degree,  of  a  similar  classification;  and, 
hence  it  is,  that  several  of  our  aidts  of  Assembly,  which  allow 
the  bill  to  be  taken  pro  confessol^  go  on  to  declare  that  the  Chan- 
cellor may,  in  his  discretion,  order  a  commission  to  issue  for  the 
plaintiff  to  examine  witnesses  to  prove  the  allegations  of  his  bill ; 
or  the  plaintiff  may  himself  be  examined  on  oath.  But  in  some 
of  these  acts  such  a  provision  was  omitted  ;  and  hence,  by  the 
act  of  1799,  ch.  79,  sec.  5?  it  is  said  to  appear  unreasonable,  that, 
in  any  case  whatever,  the  Chancellor  should  be  directed  abso- 
lutely to  take  the  bill  or  bare  allegations  of  a  suitor  pro  confes- 
so ;  and,  therefore,  enacts  that,  in  all  such  cases,  it  shall  be  at 
the  discretion  of  the  Chancellor,  either  to  take  the  bill  pro  con- 


(  \si:s  IN  THE  COURT  OF  APPEALS 

Hugthorp  tt  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

/mo,  or  to  direct  a  commission  for  taking  depositions  exparte  : 
which  law,  as  amended  by  the  act  of  1818,  c/i.  193,  sec.  6, 5,  has 
enabled  the  Chancellor  to  call  for  proofs  and  explanations  in  all 
cases  which  appear  to  require  it. 

These,  then,  are  the  legislative  rules  in  regard'  to  the  whole 
bill,  where  no  answer  at  all  is  put  in.  But  not  one  of  these  acts 
of' Assembly  which  seem  to  have  provided,  with  such  an  infinite 
deal  of  care  and  solicitude,  fur  all  the  various  causes  and  modes 
of  neglecting  or  failing  to  answer  the  whole  bill,  do,  in  any  man- 
ner, speak  of,  or  allude  to  the  case  of  a  neglect  or  refusal  to  an- 
swer a  distinct  or  material  part  only  of  the  bill:  where  an  an- 
swer is  made  to  all  the  rest.  The  act  of  1795,  c/i.88,sec.  1,  says, 
the  bill  may  be  taken  pro  confesso,  and  the  Chancellor  shall  pro- 
ceed to  decree  in  the  same  manner,  as  if  the  defendant  had  ad- 
mitted by  his  answer  the  facts  stated  in  the  bill ;  and  in  case  the 
defendant  has  been  summoned,  or  has  appeared,  and  fails  to  an- 
swer, he  must  be  ordered  to  do  so,  by  an  appointed  day  ;  or  an 
interlocutory  decree  may  be  entered  on  the  default,  and  a  com- 
mission issued  exparte :  but,  in  every  case  the  consequence  of  the 
default  is,  that  the  bill  may  be  taken  pro  confesso. 

Hence  it  appears  to  be  clear,  that  these  legislative  rules 
which,  according  to  their  letter,  are  only  applicable  to  the  case 
where  there  is  no  answer  at  all,  must,  in  spirit  and  principle,  be 
alike  applicable  to  the  case  where  the  answer  only  covers  a 
part  of  the  material  allegations,  and  is  totally  and  absolutely 
silent  as  to  the  residue  of  the  bill ;  and,  consequently,  according 
to  the  principle  and  spirit  of  these  legislative  rules,  the  unan- 
swered part  of  the  bill  must,  on  the  hearing,  be  taken  to  be  true ; 
otherwise,  there  would  be  a  manifest  inconsistency  in  the  course 
of  the  court :  and  although  a  party  might  have  a  right  to  relief 
in  Chancery,  and  be  entitled  to  an  answer  to  every  allegation  in 
his  bill,  necessary  to  sustain  his  claim  to  relief:  if  the  defendant 
failed  or  refused,  to  answer  them  all,  he  might  have  his  bill 
taken  pro  confesso ;  yet,  if  he  failed  or  refused  to  answer  a  part 
of  those  allegations  for  such  part  unanswered,  he  must  pursue  a 
different  course.  But  the  reason  and  principle  being  the  same, 
the  rule  must  be  the  same  in  both  cases.  If  the  whole  bill  is 


OF  MARYLAND.  289 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N — 1829. 

left  unanswered,  it  may  be  taken  for  true :  and*.if  a  part  only 
be  left  unanswered,  that  part  must,  in  like  manner,  be  taken 
for  true. 

These  acts  of  Assembly  of  ours,  allowing  a  bill  to  be  taken 
pro  confesso  on  the  defendants  default  in  not  answering  all  of 
them,  authorise  the  Chancellor  in  such  case  to  pass  a  final 
decree  at  once,  if  he  deems  it  unnecessary  to  issue  a  commis 
sion.  The  decree  by  default,  in  all  such  cases,  is  as  complete 
ly  final  and  absolute,  as  a  judgment  by  default  in  an  action  of 
debt  at  common  law.  The  course  of  the  English  court  of 
Chancery  is,  in  some  respects,  different.  There,  when  the 
plaintiff  obtains  a  decree  by  default,  a  provisional  clause  is  su- 
peradded,  that  such  decree  is  to  be  binding  on  the  defendant, 
unless  being  served  with  process,  he  shall,  within  a  limited 
time,  shew  cause  to  the  contrary.  And  this  decree,  being  sub 
modo  only,  is  emphatically  a  decree  nisi;  which  cannot  be,  nor 
ever  is  considered  as  final,  until  the  party  has  been  served  with 
process,  and  it  has  been  made  absolute  by  the  court  itself,  1 
Harr.  Pr.  Ch.  625.  Redes,  Tr.  195. 

'  9 

This,  it  seems,  has  long  been  the  established  practice  of  the 
courts  of  Chancery  of  Virginia;  so,  that  where  a  defendant  has 
not  answered  the  bill,  it  is  held  to  be  error  to  enter  a  final 
decree  against  him,  taking  the  bill  pro  cow/esso,  without  the  pre- 
vious service  of  a  decree  nisi :  3  Mun.  83.  2  Hen.  fy  Mun. 
\  9.  And  it  has  also  been  held  in  that  State,  that,  were  some  of 
the  allegations  oi  the  bill  were  not  answered,  the  plaintiff  might 
either  except  to  the  answer  as  insufficient,  or  move  to  have  the 
unanswered  part  of  the  bill  taken  pro  confesso.  But,  if  he  does 
neither,  it  must  be  proved,  that  he  shall  not,  on  the  trial,  avail 
himself  of  any  implied  admission  by  the  defendant :  for,  where  the 
defendant  does  not  answer  at  all,  the  plaintiff  cannot  take  his  bill 
for  confessed,  without  an  order  of  court  to  that  effSfct,  and  hav- 
ing it  served  on  the  defendant;  and  this  is  the  only  evidence  of 
his  admission :  of  course,  if  this  mode  of  proceeding  as  to  the 
confession  of  the  whole  bill  be  correct,  it  must  be  equally  cor- 
rect, as  to  the  confession  of  any  part;  2  Hen.  and  Mun.  17,  19. 
2  Mun.  R.  298-86.  4  Rand.  R.  454.  6  Craw.  51. 
VOL.  I.— 37 


"90         CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  we.  et  al.  vs.  Hook's  Adtn'rs  1>.  B.  N.— 1829. 

Such  is  the  rule,  of  the  Chancery  courts  of  Virginia.  The 
default,  in  not  making  any  answer  at  all;  and  that  of  not  answer- 
ing all  the  allegations  of  the  bill,  are  precisely  alike  in  kind, 
differing  only  in  degree :  hence,  the  courts  of  that  State,  have 
applied  the  same  rule,  in  spirit  and  principle,  to  both  defaults. 
The  party  is  allowed  to  pursue  the  same  course  to  have  his  bill, 
either  wholly  or  partially  taken  pro  confesso,  according  to  the 
extent  of  the  defendant's  default.  In  this  State  no  decree, 
nwt,  is  ever  entered  and  served  on  a  defendant  who  has 
not  answered:  but  an  absolute  decree  may  be  entered  at 
once,  as  soon  as  he  can  be  fixed  with  the  default;  which 
can  be  at  any  time  after  the  limited  period  for  answering 
has  elapsed,  or  when  he  has  elected  to  make,  and  has  actu- 
ally filed  his  answer  to  the  bill.  The  principle  and  reason  of 
the  rule,  in  Virginia  and  in  Maryland,  are  the  same  in  relation 
to  a  partial  answer.  The  courts  in  each  State,  follow  the  spirit 
of  the  established,  or  legislative  rule,  which  directs  the  mode 
of  proceeding,  in  case  the  defendant  puts  in  no  answer  at  all. 

The  plaintiff  is  entitled  to  an  answer  to  each  allegation  of  his 
bill,  which  he  may  require;  either  because  he  cannot  prove  the 
facts,  or  to  aid  his  proof,  or  to  aVbid  expense :  and  if  the  plain- 
tiff conceives  the  answer  to  be  insufficient  to  the  charges  in  the 
bill,  he  may  except  to  it;  which  has  been  compared  to  a  demur- 
rer at  law,  for  want  of  form.  The  sole  object  of  exceptions  is,  to 
extract  from  the  defendant  a  more  full  and  perfect  disclosure, 
for  the  benefit  of  the  plaintiff.  They  are  never  meant,  nor  in- 
tended, nor  are  they  calculated  to  benefit  the  defendant,  or  to 
put  him  upon  his  guard  in  any  respect  whatever.  The  plaintiff 
may,  if  he  chooses,  waive  his  right  to  except :  and  it  is  always 
most  judicious  to  do  so,  where  his  proofs  are  ample  and  at  hand; 
and  the  character  or  conduct  of  the  defendant  indicates  that  he 
is  not  altogether  trust  worthy  upon  oath :  for  in  such  case,  he 
will  attain  his  object  much  sooner  and  better,  by  taking  the 
answer  at  once,  as  he  can  get  it,  and  proceeding  directly  to  col- 
lect proofs,  without  loss  of  time,  than  by  stopping  to  take  excep- 
tions. This  is  the  case  where  the  answer  is  an  evasive,  imper- 


OF  MARYLAND.  291 

Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

feet  response;  but  yet  such  a  one  as  goes  to  the  whole  bill,  and 
by  which  each  of  its  allegations  is  denied  and  may  be  put  in  is- 
sue. But  to  what  end,  or  for  what  purpose,  where  no  explana- 
tion or  discovery  is  sought  for  by  an  allegation,  should  the 
plaintiff  by  exceptions  call  for  an  answer  to  it;  where  it  is  im- 
pliedly,  and  tacitly  admitted  by  not  being  answered.  In  such 
case,  both  parties  would  be  delayed  and  troubled,  and  the  de- 
fendant put  to  much  expense  without  any  object  whatever. 

The  general  replication  puts  in  issue  only  the  denial  or  avoi- 
dance of  the  answer ,  nothing  more;  and  neither  party  is  allowed, 
nor  can  be  called  on,  to  adduce  proof  respecting  any  matter  not 
put  in  issue.  The  unanswered  part  of  the  bill  therefore  must 
be  admitted,  since  it  cannot  be,  according  to  a  correct  and  or- 
derly course  of  proceeding,  proved  at  the  hearing.  But  if  the 
unanswered  allegations  of  a  bill  were  required  to  be  proved,  or 
to  be  rejected  altogether  at  the  hearing,  then  the  defendant 
would  be  allowed  to  take,  advantage  of  his  own  laches :  and  a 
want  of  frankness  and  simplicity,  altogether  unbecoming  a  court 
of  equity,  would  be  tolerated  and  encouraged :  and  the  plaintiff 
would  be  driven  to  except,  in  all  such  cases,  merely  to  extract 
from  the  defendant,  either  a  general  denial,  or  an  express,  in- 
stead of  a  tacit  disclaimer  or  confession;  when,  in  truth,  it  might 
have  been  the  intention  of  the  defendant,  as  it  is  fair  to  infer  it 
was,  to  concede  the  unanswered  allegation,  for  the  express  pur- 
pose of  avoiding  the  costs  and  expense  of  an  answer,  of  excep- 
tions, and  of  proofs,  by  letting  a  decree  by  default  go  for  so 
much  as  he  had  left  unanswered.  / 

In  ancient  times,  when  the  defendant  used  only  to  set  forth 
his  own  case,  in  the  answer,  without  answering  every  clause  of 
the  bill,  it  was  the  practice  for  him  to  add,  at  the  end  of  the  an- 
swer, a  general  travers,  without  that,  that  the  matters  set  forth  in 
the  bill  are  true,  &c.  But,  where  the  whole  bill,  and  every 
clause  in  it,  has  been  fully  answered,  the  adding  of  a  general 
traverse  is  rather  impertinent  than  otherwise;  and,  if  issue  is 
taken,  upon  its  general  traverse,  it  is  a  denial  only  of  every 
thing  not  answered  before  by  the  answer.  2  P.  Will.  87.  But, 
there  is  no  case,  in  which  this  general  traverse  has  ever  been 


292          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  ct  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N 1829. 

relied  upon,  as  an  answer.  If  it  ever  had  been  so  considered, 
it  must  have  occurred,  in  some  of  the  numerous  cases  of  excep- 
tions to  answers,  to  have  insisted  on  it  as  such;  yet  nothing  of 
the  kind  appears.  The  whole  range  of  adjudged  cases  shew, 
that  the  extent  and  compass  as  well  as  the  sufficiency  of  the 
answer,  as  whether  it  is  as  frank  as  it  ought  to  be,  or  whether 
it  covers  the  whole,  or  only  a  part  of  the  bill,  are  to  be  ascer- 
tained from  the  body  of  the  answer  itself:  and  not  from  the  for- 
mal introduction,  or  the  formal  general  traverse  or  conclusion 
of  it.  But,  in  this  case  the  usual  general  traverse,  denying  the 
truth  of  all  the  unanswered  allegations  of  the  bill,  has  not  been 
added  by  the  way  of  conclusion  to  any  of  the  answers. 

In  the  case  of  Hopkins  vs.  Stump,  et.  al.  2  Harr.  and  Johns. 
301,  Chancellor  Hanson  says,  "it  would  seem  likewise,  that  the 
complainant  misunderstood  the  Chancellor  in  another  particular. 
But  no  person,  acquainted  with  the  laws,  or  rules,  or  practice  of 
this  court,  would  conceive  it  the  meaning  of  the  Chancellor,  that 
whatever  matter  stated  in  a  bill  is  not  denied,  must  be  consider- 
ed as  admitted.  No !  If  interrogatories  stated  in  a  bill  are  not 
answered,  the  complainant  has  a  right  to  except  to  the  answer, 
and  if  the  interrogatories  are  proper,  the  defendant  will  be  com- 
pelled to  answer  plainly,  fully  and  explicitly.  If  then  any  ma- 
terial matter  charged  in  the  complainant's  bill,  has  been  neither 
denied  nor  admitted  by  the  answers,  it  stands  on  the  hearing  of 
the  cause/or  nought ;  this  assuredly  every  lawyer  will  admit." 

This  language  is  strong,  indicating  that  it  came  from  a  mind 
at  home  upon  the  subject  before  it,  and  that  it  was  thoroughly 
and  perfectly  satisfied  of  the  correctness  of  the  positions  thus  ad- 
vanced. But,  to  the  latter  of  them,  my  mind  cannot  yield  its 
assent;  and,  therefore,  I  have  deemed  it  a  respect  due  to  the 
memory  of  my  predecessor,  to  set  down  the  authorities,  and  the 
reasons  which  have  led  me  to  a  different  conclusion.  From  all 
that  has  heen  said  upon  the  subject,  it  appears  to  be  agreed  on 
all  hands,  that  the  plaintiff  being  entitled  to  an  answer  to  each 
allegation  contained  in  his  bill,  may  except  to  an  answer  which 
omits  to  respond  to  any  of  them;  that,  in  Virginia,  the  plaintiff, 
by  a  certain  prescribed  mode  of  proceeding,  may  have  the  un- 


OF  MARYLAND.  293 


Hagthorp  el  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

answered  allegations  taken  for  true,  but  if  he  omits  to  take  that 
course  for  that  purpose,  and  goes  to  hearing,  he  must  then  prove 
the  truth  of  the  unanswered  allegations,  or  they  will  be  disre- 
garded ;  that  according  to  Chancellor  Hanson^  the  unanswered 
allegations  stand  on  the  hearing  of  the  cause  for  nought ,  and  that 
in  my  opinion,  all  material  allegations  of  the  bill,  as  to  which  the 
answer  is  entirely  silent,  are  on  the  hearing,  to  be,  taken  pro 
confesso. 

A  fifth  general  rule  is,  that  where  an  answer  in  the  body  of 
it,  purports  to  be  an  answer  to  the  whole  bill,  but  the  respondent 
declares,  that  he  is  entirely  ignorant  of  the  matters  contained  in 
the  bill,  and  leaves  the  plaintiff  to  make  out  the  best  case  he  can, 
or  any  language  to  that  effect;  and,  the  plaintiff  files  the  general 
replication ;  all  the  allegations  of  the  bill  are  thus  denied  and  put 
in  issue  ;  and  consequently,  all  of  them,  must  be  proved  at  the 
hearing  against  a  defendant  who  has  thus  answered.  1  Fes.  274. 

This  in  England,  is  said  to  be  the  usual  form  of  the  answer  of 
the  Attorney  General ;  and  no  exception  can  be  taken  to  such 
an  answer ;  or,  indeed,  to  any  answer  of  the  Attorney  General, 
2  Mad.  Ch.  335.  The  same  form  and  rule  prevails  here,  where 
the  Attorney  General  appears  for  the  State.  This  also  is  com- 
monly, the  form  of  the  answer  of  an  infant,  or  a  person  non  com- 
pos, who  answers  by  his  guardian  or  committee.  And,  by  a 
long  established  practice,  individuals,  who  are,  in  truth,  ignorant 
of  the  whole  matter  as  to  which  the  bill  requires  any  disclosure  •„ 
but  who  are  made  defendants  as  having  an  interest  in  the  mat- 
ter in  controversy,  have  been  permitted,  by  this  general  mode 
of  answering,  to  deny  the  whole  /bill,  and  to  put  the  plaintiff  to 
prove  all  its  allegations  at  the  hearing.  6  Harr.  and  Johns.  291. 
If,  however,  it  appears  from  the  bill,  that  the  defendant  has  any 
knowledge  of  any  matter  in  it,  he  may  be  required  to  answer 
more  fully  and  particularly  to  the  extent  of  his  knowledge  or 
belief. 

Divesting  this  case  then,  of  all  extraneous  matter  ;  of  all  that 
relates  to  the  two  first  administrators  of  the  late  Jlnthony  Hook  ; 
because,  this  plaintiff  is  incompetent,  in  the  representative  char- 
acter in  which  he  sues,  to  recover  any  thing,  but  so  much  of 


294          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  el  MX.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N 1829. 

the  personal  estate  of  his  intestate  as  remains  in  specie,  or  has 
remained,  and  is  now  in  the  hands  of  any  one,  who  can  be  re- 
garded as  a  trustee  for  the  use  of  the  late  Anthony  and  his  re- 
presentatives ;  of  all  that  which  relates  to  the  next  of  kin  of  the 
late  Anthony  Hook ;  because  none  of  them,  as  such  can  have 
any  title,  but  from  one  of  his  administrators,  and  no  such  title  is 
alleged  or  pretended ;  and  also,  because  none  of  them  are 
made  parties  to  this  suit  as  plaintiffs ;  and  Barbara  Hagthorp 
and  James  Hook,  who  have  been  made  defendants,  are  neither 
charged  as,  nor  make  any  claim  or  defence  in  right  of  their 
being  two  of  the  legal  representatives  of  the  late  Anthony  Hook ; 
and  the  case,  when  thus  cleared  on  the  part  of  the  plaintiff,  is 
simply  this. 

By  a  deed  bearing  date  on  the  17th  of  August,  1797,  the  late 
Anthony  Hook  conveyed  certain  property,  therein  mentioned,  to 
the  late  John  Hook,  on  the  terms  specified  in  the  deed ;  which 
property  came  to  the  hands  of  the  late  Jo/in,  and  after  his  death, 
passed  into  the  hands  of  Hagthorp  and  wife,  as  his  administra- 
tors; and  is  now  held  and  detained  by  them,  and  the  other  defen- 
dants, who  claim  from,  and  under  them.  The  plaintiff  alleges, 
that  this  property,  according  to  the  nature  and  terms  of  the  deed, 
was  conveyed  to  John,  as  an  indemnity ;  in  case  and  upon  condi- 
tion, that  he  should  pay  certain  debts,  therein  specified,  which 
have  not  been  paid ;  and,  consequently,  that  the  late  John  Hook 
had  held,  and  his  legal  representatives,  and  those  who  claim  under 
them,  now  hold  this  property  as  trustees,  for  the  use  of  the  late 
Anthony  Hook  and  his  legal  representatives ;  who  is  now  the 
present  plaintiff:  upon  which  the  complainant  prays  that  this 
property  may  be  accounted  for  and  delivered  up,  together 
with  the  profits  thereof. 

The  whole  of  this  controversy  has  grown  out  of  the  deed  of 
the  17  th  of  August,  1797,  from  the  late  Anthony  Hook  to  his 
son,  the  late  John  Hook.  This  indenture  recites,  that  Anthony, 
being  justly  indebted  to  John  Moak,  and  thirteen  other  persons 
who  are  named;  but  the  amount  due  to  any,  or  all  of  them,  is 
not  specified :  and  then  declares,  that  John  had  agreed  to  pay 
those  creditors  of  his  father,  Anthony,  their  several  and  respec- 


OF  MARYLAND.  295 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

live  debts ;  in  consideration  of  which,  and  also  in  consideration 
of  natural  love  and  affection  for  his  son;  and  of  the  further  con- 
sideration of  five  shillings,  Anthony  conveyed  to  John  his  lease- 
hold right,  to  two  pieces  of  land  ;  the  one  a  lot  often  acres,  part 
of  the  tract  called  David's  Fancy :  and  the  other  a  lot,  fronting 
on  Jlliceana  street,  in  the  city  of  Baltimore,  together  with  cer- 
tain negroes  and  personal  property ;  all  of  which  are  particular- 
ly described.  The  indenture  then  concludes  in  these  words : 
"  To  Have  and  to  Hold  the  said  ten  acre  lot,  and  the  other  lot 
on  Jlliceana  street,  for  and  during  all  the  rest,  residue,  and  re- 
mainder of  the  original  terms  granted  for  each  respectively,  sub- 
ject to  the  rents  and  covenants  reserved  and  contained  in  the 
above,  in  part,  recited  lease  and  assignment:  and  To  Have  and 
to  Hold  all  and  singular  the  household  and  kitchen  furniture, 
plate,  and  negroes,  unto  him,  the  said  John  Hook,  his  executors, 
administrators,  and  assigns,  forever.  Provided  always,  and  it 
is  the  true  intent  and  meaning  of  these  presents,  and  of  the  par- 
ties hereto,  and  if  the  said  John  Hook,  his  executors,  adminis- 
trators, or  assigns,  shall  absolutely  omit,  neglect,  and  refuse  to 
pay  the  said  recited  creditors  of  the  said  Jlnthony  Hook,  their 
several  and  respective  just  debts  and  demands  against  the  said 
Jlnthony  Hook,  then  this  indenture,  and  every  matter,  clause,  and 
thing  therein  contained,  shall  cease,  determine,  and  be  utterly 
null  and  void,  to  all  intents  and  purposes  whatsoever;  any  thing 
herein  contained,  to  the  contrary  thereof,  in  any  wise  notwith- 
standing." 

This  proviso,  or  condition,  is  explicit  and  unequivocal.  The 
estate  conveyed  to  John  Hook, /was  to  be  null  and  void,  on  his 
failing  to  pay  and  satisfy  the  enumerated  creditors  of  Jlnthony 
Hook.  It  is,  in  fact,  a  conveyance,  by  Jlnthony,  of  certain  pro- 
perty to  John :  upon  condition  that  he  should  advance  a  certain 
sum  of  money  for  the  use  of  Jlnthony.  This  proviso,  with  the 
recital,  gives  to  the  whole  the  shape  and  character  of  a  pledge 
or  mortgage,  from  Jlnthony  to  John.  It  was  intended  to  in- 
demnify John,  for  money  advanced  by  him  to  the  use  of  his  fa- 
ther: and  all  John  can  claim,  by  virtue  of  this  deed,  is  indem- 
nity and  reimbursement  for  any  money  so  by  him  advanced.  In 


SIX?         CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N — 1829. 

the  ordinary  cases  of  a  mortgage,  the  grantor  is  the  actual  debt- 
or of  the  grantee:  and  it  is  stipulated  that  the  estate  conveyed, 
shall  be  absolute,  if  the  grantor  fails  to  pay  at  the  appointed 
time.  In  this  case,  the  grantee  undertakes  to  substitute  him- 
self in  the  place  of  the  creditors  of  the  grantor,  or  to  satisfy 
those  claims :  and  if  he  fails  to  do  so,  then  it  is  stipulated  that 
the  estate  conveyed,  shall  be  void.  The  object  of  the  grantor, 
in  both  cases,  is  the  payment  of  his  debts;  and,  in  both,  securi- 
ty is  the  object  of  the  grantee.  That  security,  in  equity,  ex- 
tends no  further  than  complete  reimbursement.  The  payment 
of  the  whole  principal  and  interest  due,,  and  no  more.  9  Wheat. 
495.  There  is  no  clause  in  this  indenture  authorising  John  Hook 
to  sell  the  property,  and  to  apply  the  proceeds  of  the  payment 
of  the  claims  of  the  enumerated  creditors :  and  even  if  there 
were,  it  would  not  have  destroyed  the  redeemable  quality  of  this 
mortgage,  or  the  resulting1  use  arising  out  of  the  nature  of  this 
deed.  3  Harr.  <§"  Johns.  106.  In  this  case  it  is  alleged,  that  the 
late  John  Hook,  and  his  representatives,  have  altogether  failed 
to  pay  the  enumerated  debts,  in  compliance  with  the  stipulations 
of  the  deed.  If  so,  Anthony  Hook  had,  and  his  representative 
now  has,  a  right  to  a  return  of  this  property,  with  its  profits : 
or,  at  least,  to  redeem  it  on  the  payment  of  so  much  as  has  been 
advanced  by  John  Hook,  or  his  representatives. 

It  has  been  urged,  that  there  is  not  the  least  room  to  deduce, 
from  this  deed,  any  thing  like  an  implied  or  resulting  use  to 
Anthony  Hook,  and  his  representatives :  because,  it  is  declared 
to  have  been  made,  not  only  for  a  valuable  consideration,  as  the 
payment  of  debts,  and  also  of  five  shillings;  but  likewise  for  a 
good  consideration,  as  the  natural  love  and  affection  from  the 
father  to  the  son. 

The  doctrine  of  a  resulting  use,  first  introduced  the  notion 
that  there  must  be  a  consideration  expressed  in  the  deed;  or, 
otherwise,  nothing  could  pass — but  it  would  result  to  the  gran- 
tor. It  is  certain,  however,  that  the  rule  in  relation  to  trusts,  by 
implication,  or  operation  of  law,  is  by  no  means  so  large  as  to 
extend  to  every  mere  voluntary  conveyance;  and,  consequently, 
if  this  deed  stood  alone,  upon  the  valuable  consideration  of  five 


OF  MARYLAND,  297 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

shillings,  and  upon  the  good  one  of  natural  love  and  affection,  or 
upon  either  of  them,  unconnected  with  other  circumstances, 
there  could  be  no  doubt  of  its  validity,  as  an  absolute,  and  effec- 
tual conveyance,  from  Anthony  to  John.  2  Jltk.  256.  But,  when 
other  matters  are  necessarily  brought  into  view,  or  form  a  part 
of  the  contract,  then  it  is  no  less  clear,  that  the  mere  express 
consideration  of  five  shillings,  even  with  the  superadded  expres- 
sions, "and  of  other  valuable  considerations,"  or  of  natural  love 
and  affection,  will  not  prevent  the  deduction  of  a  trust  by  impli- 
cation or  operation  of  law.  I  Fes.  Jtw'r.  92.  1  Jltk.  93,  191. 
2  Jltk.  149.  And  where  a  trust  is  declared  as  to  part,  or  the 
property  is  to  be  applied  for  a  particular  purpose,  and  nothing 
is  said  of  the  residue;  what  remains,  so  undisposed  of,  results  to 
the  grantor.  2  Fonb.  116, 133. 

This  indenture  cannot  be  read  with  a  total  disregard  of  its 
recital  and  proviso,  two  of  its  most  important  features.  We 
cannot  turn  aside  from  clauses,  so  very  striking  and  efficient,  as 
the  recital  of  the  cause  of  its  having  been  made,  and  the  provi- 
so wherein  it  is  said,  if  that  consideration  alone  be  not  complied 
with,  the  whole  shall  be  a  nullity.  If  these  matters  could  be 
entirely  passed  over,  the  argument  against  a  resulting  trust  would 
be  exceedingly  strong,  if  not  altogether  irresistible.  But,  look- 
ing to  the  recital,  and  the  proviso,  it  is  perfectly  manifest,  that 
the  sole  object  of  the  deed  was  to  secure  the  payment  of  cer- 
tain creditors  of  Jlnthony  Hook.  If  they  were  not  paid,  the 
whole  deed,  utterly  regardless  of  the  consideration  of  five  shil- 
lings, and  of  natural  love  and  affection,  was  declared  to  be  void. 
The  payment  of  the  creditors  was,  then,  that  consideration  alone 
upon  which  the  conveyance  was  to  stand  or  fall.  This,  is  the 
real  extent  of  the  consideration,  no  more;  and  to  this  extent,  and 
no  further,  the  late  Jlnthony  Hook  parted  with  his  right  and 
interest  in  this  property  :  consequently,  in  the  value  of  this  pro- 
perty, beyond  that  of  the  aggregate  amount  of  the  specified 
debts,  there  is  an  implied  or  resulting  use,  remaining  or  vested  in 
Jlnthony  Hook,  the  grantor,  and  his  representatives. 

But,  there  is  an  express  saving  in  the  statute  of  frauds,  of 
trusts  by  implication  or  operation  of  law;  nor  does  the  statute 
VOL.  I.— 38. 


298         CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  tt  vx.  et  al.  vs.  Hook's  Adm'rsD.  B.  N.— 1829. 

affect  trust  of  mere  personalty.  10  Mod.  404.  3  Bro.  C.  C. 
587.  Such  uses,  therefore,  might  in  this  case  be  established  by 
parol  proof,  if  this  were  not  sufficiently  manifest  from  the  terms 
of  the  deed  itself.  2  John  C.  Rep.  409.  Let  us  now,  then, 
turn  to  the  answer  and  proofs. 

Hagthorp  and  wife  have  answered  jointly.  She,  before  her 
marriage  with  Hagthorp,  obtained  letters  of  administration  on 
the  personal  estate  of  her  late  husband,  John  Hook,  and  it  is  in 
that  character  only,  that  they  are  now  brought  here  as  defen- 
dants. They  say,  in  relation  to  the  enumerated  creditors  of  the 
late  Anthony  Hook,  "that  the  said  John  Hook  paid  the  said 
sums  of  money,  set  out  in  the  assignment,  so  far  as  the  creditors 
applied  for  payment  of  the  same:"  and  again,  "that  the  said  John 
Hook  accordingly  paid  the  debts  particularly  mentioned  therein, 
(that  is  in  the  deed)  as  these  defendants  believe  and  charge." 

It  is  too  late  now  to  inquire  whether  this  answer  is  as  frank 
and  unexceptionable  as  it  ought  to  have  been  or  not.  The  only 
question  at  this  stage  of  the  proceedings,  is,  whether  it  be  such 
a  response  to  the  bill  as  constitutes  a  sufficient  defence,  if  un- 
contradicted  by  proof;  or  whether,  as  is  often  said  on  motions 
to  dissolve  injunctions,  the  answer  has  sworn  away  the  equity 
of  the  bill? 

The  first  of  these  sentences  cannot  be  considered  as  a  distinct 
answer  to  any  extent;  either,  that  the  debts  have,  or  have  not 
been  paid:  and  the  second  of  them  amounts  to  no  more  than  a 
declaration  of  a  belief  that  they  have  been  paid.  Where  the  na- 
ture of  the  transaction,  charged  in  the  bill,  is  such  a  one  as  must 
have  been  altogether  within  the  knowledge  of  the  intestate,  the 
administrator  may  answer  as  he  is  informed  and  verily  believes; 
but,  the  answer  of  an  administrator  must  always  be  taken,  as 
well  with  a  reference  to  the  reasons  given  for  his  belief,  as  to  the 
nature  of  the  subject  of  which  he  speaks.  This,  however,  is 
a  broad  assertion  of  a  belief,  without  giving  any  reasons  for  it;  or 
its  appearing,  or  being  alleged,  that  the  matter  was  exclusively 
within  the  knowledge  of  their  intestate.  In  these  particulars 
this  answer  is  ,not  so  responsive  to  the  bill  as  to  constitute  an 
available  defence. 


OF  MARYLAND.  S99 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

But,  according  to  the  bill  and  the  deed,  which  is  made  a  part 
of  the  bill,  John  Hook  undertook  to  pay  certain  debts  due  from 
Anthony  Hook.  The  answer  to  this  charge  must,  then,  from 
the  nature  of  things,  be  such- a  one  as  would  furnish  evidence 
available  to  Anthony  or  his  representative:  it  is  that,  the  bill 
seeks.  For,  by  the  deed,  Jlnthony  was  to  be  protected  from 
the  claims  of  his  creditors;  and  upon  John's  affording  that  pro- 
tection his  title  rested.  In  effect  the  bill  asks,  not  only  whether 
the  debts  have  been  paid,  or  not;  but  more,  it  requires  the  evi- 
dences of  their  payment  to  be  produced,  as  a  means  whereby 
Jlnthony,  and  his  representatives,  may  be  protected  against 
those  claims ;  and  such  evidence,  in  addition  to  any  thing  that 
might  be  said  in  the  answer,  is  also  necessary,  because  it 
constitutes  an  affirmative  part  of  that  title  set  up  by  John 
Hook's  representatives,  in  opposition  to  the  plaintiff's  claim; 
and  must  therefore  be  supported  by  indifferent  testimony.  All 
the  claims  of  the  enumerated  creditors  which  have  not  been 
paid,  it  is  most  likely  have  been  long  since  barred  by  the 
statute  of  limitations ;  but  that  is  a  protection  which  the  law 
itself  gave  to  Anthony.  He  is  entitled,  by  the  terms  of  his  deed, 
to  be  furnished  by  John  with  the  evidence  of  their  being  satis- 
fied, as  the  means  of  his  protection  in  that  form.  This  answer, 
therefore,  is  not  for  these  reasons  also,  so  responsive  to  the  bill 
as  to  afford  the  defendants  an  adequate  defence.  On  adverting 
to  the  proofs  and  exhibits,  it  appears  that  John  Moak^s  is  the 
only  one  of  the  specified  claims  that  has  been  satisfied;  and  none 
others  are  to  be  allowed  as  paid.  / 

I  lay  out  of  this  case  the  testimony  of  Henry  Burman,  who,  as 
the  husband  of  one  of  the  distributees  of  Anthony  Hook,  has  an 
interest  in  establishing  the  facts  to  which  he  testifies,  and  is, 
therefore,  incompetent.  All  the  other  witnesses  are  competent. 
From  the  copy  of  the  unexecuted  bond,  the  declarations  of 
Bishop  Carroll,  and  the  other  occurrences  and  proceedings  in 
the  Orphans'  Court  found  amoung  the  proofs,  it  appears  to 
have  been  perfectly  well  understood  between  Anthony  and  John, 
during  their  lives,  that  John  held,  as  the  trustee  of  Anthony,  ac- 
cording to  the  terms  of  the  deed :  and  it  appears,  that  the  repre- 


300          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  u*.  ttal.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

gentatives  of  John  always  admitted,  that  they  held  under  the 
deed;  and  yet,  except  the  claim  of  John  Moates,  it  does  not 
appear,  that  they  ever  undertook  to  shew,  that  any  of  the  claims 
of  the  enumerated  creditors  had  been  satisfied.  It  lay  upon 
John  and  his  representatives  to  shew,  that  those  claims  were 
paid ;  and  they  have  not  done  so,  and  the  truth  is  therefore  that, 
except  Moale^s  claim,  none  of  them  have  been  satisfied. 

The  answer  of  Hagthorp  and  wife,  after  some  preliminary  no- 
tices of  several  allegations  in  the  bill,  and  those  responses,  as 
to  the  payment  of  the  enumerated  debts,  passes  on  to  a  long  his- 
tory of  the  sayings,  actings,  and  doings  of  sundry  of  the  next  of 
kin  of  the  late  Anthony  Hook,  in  relation  to  the  ten  acre  lot ;  as 
to  all  of  which,  for  the  reasons  already  assigned,  it  will  be  unne- 
cessary to  say  any  thing  further.  The  bill  specially  charges,  that 
Hagthorp  and  wife,  by  a  deed  dated  on  the  23d  day  of  Decem- 
ber, 1819,  leased,  or  assigned,  a  part  of  the  lot  on  Jlliceana  street , 
to  Matthew  Bennett.  Of  these  special  allegations,  these  defen- 
dants take  no  notice ;  but  say,  that  the  late  Jlnthony  Hook,  by 
an  indenture  dated  on  the  8th  day  of  May,  1797,  conveyed  the 
lot  on  Aliceana  street,  to  the  late  John  Hook.  This  is  an  alle- 
gation in  avoidance  of  the  bill,  and  certainly  required  to  be  sup- 
ported by  proof.  But  their  is  not  even  an  exhibit,  nor  one  tittle 
of  proof  in  relation  to  it.  This  part  of  the  answer,  therefore, 
passes  for  nothing. 

As  to  all  the  allegations  of  the  bill,  in  relation  to  the  negroes, 
and  other  moveable  property  mentioned  in  the  deed,  this  an- 
swer is  absolutely  and  totally  silent — it  says  nothing:  and,  conse- 
quently, as  to  so  much  the  bill  must,  according  to  the  rules  that 
have  been  laid  down,  be  taken  pro  confesso. 

Upon  the  whole,  then,  and  from  what  has  been  said,  it  follows 
that  the  defendant,  Hagthorp  and  wife,  as  the  legal  representa- 
tives of  the  late  trustee,  John  Hook,  will  be  decreed  to  deliver 
up  to  the  plaintiff,  all  the  property  mentioned  in  the  deed;  or  to 
pay  the  value  of  so  much  as  they  may  have  converted,  or  fail  to 
deliver,  together  with  the  profits  thereof,  or  the  interest  on  the 
value;  except  certain  allowances,  and  those  parts  wherewith 
the  other  defendants  may  be  charged,  as  I  shall  now  proceed  to 
enquire  and  determine. 


OF  MARYLAND.  301 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N— 1829. 

All  the  other  defendants  deduce  their  title,  either  directly  or 
indirectly,  from  Hagthorp  and  wife,  except  Nathaniel  Chitten- 
den,  who  traces  his  claim  from  the  late  John  Hook.  But  all  al- 
lege, that  they  are  purchasers  for  a  valuable  consideration,  with- 
out notice.  There  is  no  principle  of  equity  better  settled,  than 
that  such  a  purchaser  will  not  be  disturbed  by  this  court.  On 
the  other  hand,  it  is  equally  well  settled,  that  he  who  purchases 
with  a  knowledge  of  the  trust,  becomes  himself  the  trustee,  and 
stands  in  the  place  of  the  vendor,  under  whom  he  thus  claims, 
subject  to  all  his  liabilities.  Yet  a  person  having  himself  no- 
tice, who  purchases  of  one  who  had  not  notice,  may  protect 
himself  by  the  want  of  notice  in  his  vendor;  nor  shall  a  purchas- 
er without  notice,  or  a  previous  purchaser  with  notice,  be  af- 
fected by  the  notice  of  his  vendor :  and  where  a  purchaser  can- 
not make  title,  but  by  a  deed,  which  leads  him  to  a  knowledge 
of  the  fact;  and  more  especially  where  the  deed,  by  virtue  of 
which  he  takes,  recites,  or  directly  refers  to  that  instrument  in 
which  the  trust  is  declared,  or  from  which  it  arises,  he  shall  be 
deemed  cognizant  of  the  fact,  and  a  purchaser  with  notice. 
These  are  the  well  established  principles  of  equity  upon  this 
subject.  2  Fonb.  147,151. 

William  McMechen,  in  his  answer,  avers  that  he  is  a  pur- 
chaser, for  a  valuable  consideration,  without  notice;  and  yet 
makes  an  exhibit,  by  his  answer,  as  a  part  thereof,  of  a  deed 
dated  on  the  Qt h  of  September,  1 803 :  under  which  he  takes 
from  Hagthorp  and  wife,  in  which  the  indenture  from  Jlnthony 
Hook  to  John  Hook,  out  of  which/the  trusts  arise,  is  clearly  and 
distinctly  referred  to  as  one  of  the  links  in  the  chain  of  the  title 
of  Hagthorp  and  wife.  This,  of  itself,  is  enough  to  shew  that 
McMechen  is  a  purchaser  with  notice.  But  the  proofs  leave  no- 
doubt  upon  the  subject:  they  shew,  that  he  had  ample  notice. 

This  defendant,  therefore,  will  be  decreed  to  deliver  up  and  re- 
convey  to  the  plaintiff  whatever  of  the  ten  acre  lot,  thus  acquir- 
ed by  him,  he  may  now  hold :  and  to  account  for  the  rents  and 
profits  thereof,  from  the  date  of  the  deed  under  which  he  ob- 
tained possession,  with  such  just  allowances  as  he  may  be  enti- 
tled to;  the  nature  of  which  shall  be  specified. 


30-2          CASES  IN  THE  COURT  OF  APPEALS 

Hastliorp  et  MX.  et  a/,  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

Samuel  Moore  and  George  Jl.  Hughes  answer  jointly ;  they 
positively  aver,  that  they  are  purchasers  of.  William  McMechen, 
for  a  valuable  consideration,  without  notice.  But  they  exhibit 
no  evidence  of  title,  nor  any  proof  of  right  whatever.  Accord- 
ing to  the  rules  and  principles  before  laid  down,  they  cannot  be 
permitted  thus  to  swear  themselves  into  the  estate  of  the  plain- 
tiff; and  consequently,  even  if  their  answer  were  in  other  re- 
spects fully  responsive  to  the  bill  it  could  not  avail  them  as  a 
defence,  unsupported,  as  it  is,  by  proof.  These  defendants  will, 
in  like  manner,  be  decreed  to  deliver  up  and  reconvey  to  the 
plaintiff  the  proper  y  held  by  them ;  and  be  also  charged  with 
rents  and  profits,  from  the  1st  day  of  May,  1818,  when  it  ap- 
pears they  obtained  possession. 

John  Color,  by  his  answer,  states,  that  he  purchased  of  Mc- 
Mechen that  which  he  holds.  His  predicament  and  pretensions 
are  similar,  in  all  respects,  to  those  of  Moore  and  Hughes. — 
Color,  therefore,  will  likewise  be  decreed  to  deliver  up  and  re- 
convey,  and  also  to  account  for  the  rents  and  profits  of  what  he 
holds,  from  the  1st  of  May,  1818;  when  he  was  let  into  posses- 
sion, with  such  just  allowances  as  shall  be  specified. 

John  S.  King,  by  his  answer,  states,  that  he  leased  from  the 
defendant,  Color ;  but  having  exhibited  no  better  title  than  his 
lessor,  Kill  be  in  a  like  manner,  ordered  to  deliver  up,  reconvey, 
and  account  for  the  rents  and  profits,  to  the  plaintiff,  from  the 
9/h  of  March,  1819,  when  he  took  possession. 

John  Weaver,  in  his  answer,  says  that  he,  too,  is  one  of  those 
who  purchased  of  William  McMechen.  This  defendant  has 
also  left  his  answer  entirely  destitute,  and  wholly  unsupported 
by  any  exhibits  or  proofs.  He  will,  therefore,  be  decreed  to 
deliver  up,  reconvey,  and  account  for,  the  rents  and  profits 
to  the  plaintiff.  He  admits  that  he  obtained  possession  in  the 
year  1819;  but  does  not  specify  the  day  or  month.  4  medium, 
in  the  absence  of  proof,  will,  therefore,  be  taken;  and  the  ac- 
count will  commence  on  the  1st  day  of  July,  of  the  year  1819, 
with  such  just  allowances  as  shall  be  specified. 

The  defendant,  John  Fitzgerald,  in  his  answer,  states  that  on 
the  4th  of  September,  1806,  he  purchased  of  John  H.  Hall,  a 


OF  MARYLAND.  303 


Hagthorp  et  ux.  et  al.  vs.  Hook's  Adm'rsD.  B.  N.— 1829. 

part  of  a  parcel  of  ground,  containing  ten  acres;  part  of  a  tract 
of  land  called  Davids  Fancy :  that  he  gave  for  it  a  valuable 
consideration;  and  had  no  notice  of  the  claim  of  the  representa- 
tives of  the  late  Jlnthony  Hook.  He  then  goes  on  to  state,  that 
he  purchased  of  the  defendant,  Hagthorp,  two  other  parcels  of 
the  same  ten  acre  lot;  the  one  on  the  9th  of  August,  1810,  and 
the  other  on  the  17th  of  June,  1815;  and  that  he  purchased  a 
fourth  parcel  of  it,  on  the  17th  of  September,  1811,  of  Gerard 
Tipton;  for  all  of  which,  he  avers,  he  paid  a  valuable  consider- 
ation, and  that  he  had  no  notice  of  the  claim  of  Anthony  Hook's 
representatives.  This  answer  is  also  entirely  unsupported  by 
any  evidence  whatever;  and,  therefore,  this  defendant  will  be 
decreed  to  deliver  up,  and  reconvey  to  the  plaintiff  so  much  of 
the  ten  acre  lot,  mentioned  in  the  bill,  as  he  holds:  and  will,  also 
be  held  accountable  for  the  rents  and  profits  thereof,  from  the 
dates  when  he  obtained  possession  of  each  parcel  respectively. 
The  nature  of  the  just  allowance  to  which  he  may  be  entitled, 
will  be  described. 

Benjamin  Rawlings,  surviving  executor  of  the  late  William 
Raiclings,  states,  that  his  co-executrix,  Catharine  Rawlings, 
who  had  been  made  a  defendant,  is  dead :  that  he  is  in  possession 
of  part  of  the  ten  acre  lot  in  the  bill  mentioned,  by  virtue  of  a 
deed  bearing  date  on  the  10th  day  of  September,  1804.  This 
answer  is  also  entirely  unsupported  by  proof.  This  defendant 
will  be  decreed  to  deliver  up  and  reconvey  the  property,  so  held 
by  him  to  the  plaintiff;  and  be  charged  with  the  rents  and  pro- 
fits, as  executor,  from  the  date  of  the  deed  under  which  his 
testator  obtained  possession;  wip  such  just  allowances  as  shall 
be  specified. 

The  defendant,  Matthew  Bennett,  in  his  answer,  says,  that  he 
is  in  possession  of  a  part  of  the  ten  acre  lot  mentioned  in  the  bill, 
which  he  holds  under  a  conveyance  from  Hagthorp  and  wife, 
dated  on  the  3d  day  of  August,  1810.  But  this  defendant,  too, 
has  left  his  answer  entirely  destitute  of  proof.  The  bill  express- 
ly  alleges,  that  Hagthorp  and  wife,  by  deed,  dated  on  the 
twenty-third  day  of  December,  1819,  leased  a  part  of  the  lot  on 
Jlliceana  street  to  Matthew  Bennett :  in  relation  to  which,  this 


304          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  ux.  etal.  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

defendant  says  nothing  in  his  answer.  This  allegation  of  the 
bill,  as  against  him,  must  therefore  be  taken  for  true.  He  will 
be  decreed  to  deliver  up,  and  reconvey  all  the  property  held  by 
him,  to  the  plaintiff:  and  to  account  for  the  rents  and  profits  of 
each  parcel  from  the  time  he  took  possession. 

The  defendant,  Nathaniel  Chittenden,  admits  that  he  holds 
possession  of  the  lot  on  Jlliceana  street  to  which  he  derives  ti- 
tle, through  various  mesne  conveyances,  from  the  late  John 
Hook.  He  avers  that  he,  and  those  under  whom  he  claims, 
were,  all  of  them,  purchases  for  a  valuable  consideration,  without 
notice  ;  but  produces  no  proof  in  support  of  the  allegations  of  his 
answer.  He  will  therefore,  in  like  manner,  be  decreed  to  deliver 
up  and  reconvey  the  property,  so  held  by  him,  to  the  plaintiff; 
and  be  held  accountable  also  for  the  rents  and  profits. 

The  defendant,  James  Hook,  on  the  7th  day  of  February, 
1823,  filled  his  answer;  and  he  says  therein,  to  the  amended  bill 
of  the  complainant;  but  there  does  not  appear  to  have  been  any 
amended  bill  put  upon  the  record  until  some  time  after  that  day. 
There  is,  however,  no  charge  whatever  made  against  this  de- 
fendant, and  therefore  the  bill  will  be  dismissed,  as  to  him,  with 
costs. 

I  have  said,  that  the  recital  and  proviso  in  the  indenture  of  the 
17th  of  August,  1797,  from  Anthony  Hook  to  John  Hook,  gave 
to  that  instrument  the  features  and  character  of  a  mortgage. 
Consequently,  the  original  parties  stood  and  their  legal  represen- 
tatives now  stand  in  the  relation  to  each  other  of  mortgagor  and 
mortgagee,  or  trustees,  and  cestui  que  trusts.  No  acts,  or  cir- 
cumstances appear  to  have  occurred  to  destroy  the  redeemable 
quality  of  that  deed.  Hagthorp  and  wife,  as  administrators  of 
the  late  John  Hook,  have  succeeded  to  his  character  of  trustee, 
and  the  defendants  who  all  claim  under  them,  except  Nathan- 
iel Chittenden,  who  derives  his  claim  from  the  late  John  Hook, 
as  purchasers  with  notice  for  so  much  as  they  hold,  stand 
charged  with  the  same  trusts. 

The  whole  of  the  property  mentioned  in  the  bill  has  been 
continually  in  the  possession  of  the  late  John  Hook,  anb  those 
who  have  succeeded  to,  and  claim  under  him,  ever  since  the 


OF  MARYLAND.  305 


Hagthorp  et  ux.  etal  vs.  Hook's  Adm'rs  D.  B.  N.— 1829. 

year  1797.  They  have  protected  it,  relieved  it  from  burthens 
and  charges,  and  have  placed  upon  some  parts  of  it  lasting  im- 
provements. It  now,  therefore,  only  remains  to  apply  the  rules 
of  equity  in  relation  to  these  matters,  and  to  direct  how  the  ac- 
counts shall  he  stated. 

If  a  mortgagee,  without  the  assent  of  the  mortgagor,  assigns 
the  mortgaged  estate  to  an  insolvent  person  who  he  puts  into 
possession,  he  will  be  held  answerable  for  the  rents  and  profits 
received  both  before  and  after  the  assignment;  upon  the  princi- 
ple, of  its  being  a  wilful  breach  of  trust,  to  transfer  the  property 
to  another,  which,  as  trustee,  he  had  no  right  thus  to  dispose  of, 
to  the  prejudice  of  the  mortgagor.  Pow.  Mort.  948.  2  Fonb. 
179.  A  trustee  is,  in  no  case,  to  be  charged  with  imaginary 
values,  but  only  with  what  he  actually  receives :  and  the  same 
rule  applies  to  a  mortgagee,  in  possession,  who  is  regarded  as  a 
trustee.  But  no  default  must  be  imputed  to  him;  for  in  all  such 
cases,  he  will  be  charged  with  what  he  might  have  made,  but 
for  his  default.  The  annual  value  is  that  which  the  premises 
are  actually  worth  nett,  according  to  a  fair  estimate,  clear  of  all 
necessary  charges. 

Under  the  head  of  just  allowances,  it  has  long  been  the 
course  of  the  court  to  allow  a  trustee,  or  mortgagee  in  posses- 
sion, for  all  necessary  expenses  incurred  for  the  defence,  relief, 
protection  and  repairs  of  the  estate :  such  as  costs  of  suit,  and 
fees  for  taking  opinions  and  procuring  directions  necessary  for 
the  due  execution  of  the  trusts,  10  Vts.  184,  taxes,  paving  con- 
tributions, ground  rent,  and  sums  expended  in  necessary  repairs. 
Pow.  Mort.  956,  n.  2  P.  Will  455.  It  has  been  also  said  and  I 
think  with  justice,  that  where  a  mortgagee,  thinking  himself  ab- 
solutely entitled,  had  expended  considerable  sums  in  repairs  and 
lasting  improvements,  he  should  be  allowed  the  value  of  them. 
Pow.  Mort.  956,  n.  And  in  a  modern  case,  the  value  of  new 
buildings,  erected  by  the  mortgagee,  was  allowed,  4  Fes.  482, 
and  a  liberal  allowance  for  the  improved  value  of  slaves  while 
in  the  possession  of  the  mortgagee,  was  directed  to  be  made. 
Ross  vs.  Worrall,  1  Wash.  14.  The  grounds  of  these  decisions 
appear  to  be,  that  a  mortgagee  in  possession,  is  the  legal  holder 
VOL.  I.— 39 


306          CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  ux.  et  al.  rs.  Hook's  Adm'rs  D.  B.  N— 1829. 

of  the  estate;  which  the  mortgagor  may  at  any  time  redeem 
and  so  prevent  him  from  making  any  repairs  or  improvements, 
and  if  the  mortgagee  has  been  long  in  the  possession,  claiming 
adversely,  and  suffered  to  treat  the  estate  at  his  own,  and  the 
mortgagor  stands  by  and  permits  lasting  improvements  to  be 
made,  he  shall  pay  for  them.  5  Harr.  fy  Johns.  147.  4  John.  C. 
Rep.  122. 

But  the  estimate  of  the  value  of  such  lasting  improvements  is 
to  be  taken  as  they  are  at  'the  time  of  accounting  or  passing  the 
final  decree.  For  such  allowances  are  made  upon  the  ground, 
that  the  improvements  do,  in  fact,  pass  into  the  hands  of  the 
plaintiff  as  a  new  acquisition.  And  they  can  only  be  a  new  ac- 
quisition to  him,  to  the  extent  of  their  value  at  the  time  he  re- 
covers or  obtains  possession  of  them;  and  therefore  their  value 
at  that  time  is  to  be  allowed,  and  nothing  more.  3  Rob.  Mm.  Rep. 
101.  It  is  also  necessary  to  observe  that  in  charging  rents  and 
profits,  the  estimate  must  not  include  any  profits  which  arise  ex- 
clusively from  such  improvements;  for,  if  they  were  to  be  em- 
braced by  the  estimate,  the  occupier  would,  in  fact,  be  paying 
for  the  profits  of  that  which  was  his  own;  and  the  plaintiff  would 
be  allowed  to  derive  the  benefit  from  a  new  acquisition  before 
the  court  had  awarded  it  to  him.  Therefore,  the  estimate  of 
rents  and  profits  must  be  made,  in  exclusion  of  such  as  appears 
to  have  arisen  from  the  occupying  claimant's  own  expenditure 
in  improvements.  1  John.  C.  Rep.  388. 

In  this  case,  the  late  John  Hook  disposed  of  the  lot  on  Alice- 
ana  street,  and  his  representatives  Hagthorp  and  wife,  having 
disposed  of  the  other  property  in  a  manner  in  which  they  had  no 
right  to  do,  and  the  bill  standing  unanswered,  and  for  true,  as 
to  the  negroes  and  moveable  property,  Hagthorp  and  wife  must 
be  charged  with  the  value  of  the  whole  of  that  property,  and 
interest  thereon,  from  the  date  of  the  deed  from  the  late  Antho- 
ny Hook  to  the  late  John  Hook,  and  the  account  for  the  rents 
and  profits  of  the  chattels  real,  will  commence  from  the  same 
date.  Hagthorp  and  wife  must  be  charged  with  the  rents  and 
profits  of  all  the  chattels  real,  mentioned  in  the  bill  up  to  the  time 
when  they,  or  any  part  of  either  passed  into  the  hands  of  any 


OF  MARYLAND.  307 

Hagthorp  et  ux.  et  al.  vs.  Hook's  Adtn'rs  D.  B.  N 1829. 

of  the  present  defendants.  But  Hagthorp  and  wife  will  be  held 
liable  for  the  whole  amount  charged  against  the  other  defendants, 
or  to  the  amount  which  all,  or  any  of  them  may  fail  or  be  unable  to 
pay  to  the  plaintiff,  and  these  defendants  must  be  credited  with 
the  amount  of  the  debt  which  was  due  from  Jlnthony  Hook  to 
John  Moale  at  the  time  of  the  execution^ of  the  deed  to  John 
Hook,  with  interest  thereon,  from  the  time  when  it  appears  to 
have  been  paid. 

The  account  against  each  of  the  other  defendants  will  com- 
mence from  the  day  on  which  it  appears  by  his  answer,  or  by 
the  proofs  now  in  the  cause,  or  which  may  hereafter  be  exhi- 
bited, that  he  obtained  possession,  and  he  will  be  charged  for  all 
the  time  he  held  that  portion  of  the  property,  or  until  it  passed 
into  the  hands  of  another  of  the  defendants.  The  account 
against  each  of  the  defendants  who  is  now  a  holder  of  any  por- 
tion of  the  property  is,  for  so  much  as  he  holds,  to  be  brought 
down  to  the  time  of  taking  the  account. 

Whereupon,  it  is  ordered,  on  this  5th  day  of  December,  in  the 
year  1826,  that  this  cause  be,  and  the  same  is  hereby  referred 
to  the  Auditor,  with  direction  to  state  an  account,  or  accounts, 
accordingly ;  from  the  proceedings  and  proofs  now  in  the  cause, 
or  such  other  proofs  as  may  be  laid  before  him  by  the  parties : 
and  it  is  further  ordered,  that  the  parties  be,  and  they  are  here- 
by allowed  to  take  such  testimony  as  they  may  think  proper, 
in  relation  to  the  accounts  so  directed  to  be  stated  by  the  Audi- 
tor ;  on  giving  to  the  opposite  party  or  his  or  their  solicitor  three 
days  notice  as  is  usual.  Provided,  that  no  testimony  shall  be 
used  before  the  Auditor,  or,  in1  any  way  admitted  into  this 
cause,  unless  it  be  taken  and  filed  with  the  Register,  on,  or  be- 
fore the  15th  day  of  January  next.  From  this  order  the  de- 
fendants appealed  to  this  court. 

The  cause  came  on  to  be  argued  before  EAB.LE,  ARCHER 
and  DORSEY,  J.  when, 

Williams,  (District  attorney  of  U.  S.)  and  Learned  for  the 
appellee,  moved  the  court  to  dismiss  the  appeal,  upon  the 
ground  that  an  appeal  did  not  lie  from  the  order  of  the  Chan- 


30S          CASES  IN  THE  COURT  OF  APPEALS 

Haicthorp  tl  we.  el  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

celior  in  this  case,  as  it  did  not  settle  any  question  of  right  be- 
tween the  parties.  They  rel'envd  to  Snoicdcn  vs.  Dorsey,  6 
Harr.  fy  Johns.  114.  Thompson  vs.  M'-Kim,  ib.  327,  and  Odder 
vs.  H'alker,  2  llarr.  #  Gill,  326,  32!). 

Moale  and  R.  JV.  Martin  against  the  motion,  referred  also  to 
Snowden  vs.  Dorsey,  and  Thompson  vs.  MKimy  and  to  Strike 
vs.  JW  Donald,  2  Harr.  $  Gill,  191. 

DORSEY,  J.  delivered  the  opinion  of  the  court. 
A  motion  being  made  to  dismiss  the  appeal  to  this  court,  on 
the  ground,  that  the  Chancellor  decided  nothing  in  controversy 
between  the  parties  which  can  properly  form  the  basis  of  an 
appeal;  to  present  a  view  of  the  question,  but  few  of  the  facts 
contained  in  the  record  need  be  stated.  The  appellee  sought 
to  recover  certain  leasehold  and  personal  property,  with  the 
rents  and  profits  arising  therefrom.  The  right  to  such  recove- 
ry being  resisted  by  the  defendants,  and  much  testimony  in 
relation  thereto,  being  taken  under  commissions  issued  for  that 
purpose;  after  the  case  had  been  argued,  the  Chancellor,  in 
his  explanatory  or  introductory  remarks  to  what  he  was  then 
about  to  order,  discusses  at  great  length  many  rules  and  prin- 
ciples of  equity  and  a  great  variety  of  facts,  all  of  which  he 
considers  clearly  in  favour  of  the  appellee,  and  announces  his 
intention  at  some  future  time  to  decree  accordingly :  and  to 
enable  him  to  do  so,  he  passed  the  following  order,  viz:  (See  the 
order  ante,  p.  307.) 

From  this  proceeding  of  the  Chancellor,  the  present  appeal 
has  been  prosecuted;  and  the  only  question  submitted  to  our 
consideration  is,  does  this  order  so  settle  or  materially  aifect 
all  or  any  of  the  rights  or  interests  in  controversy  between  the 
parties,  as  to  make  it  a  decretal  order  from  which  an  appeal 
would  lie^greeably  to  the  provisions  of  the  acts  of  Assembly  of 
1785,  ch.  72,  and  1818,  c/i.  193?  We  are  clearly  of  opinion 
that  it  does  not.  To  ascertain  what  has  been  decided  by  the 
Chancellor,  we  must  look  to  the  order  itself.  If  its  expressions 
be  explicit,  unequivocal,  we  need  search  no  further  for  its  im- 
port; but  must  give  it  that  interpretation  which  it  bears  upon  its 


OF  MARYLAND.  309 


Hagthorp  el  ux.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N. — 1829. 

face.  If  its  construction  be  ambiguous;  then,  as  the  best  key 
to  its  exposition,  we  must  refer  to  the  introductory  remarks  of 
the  Chancellor  upon  which  it  was  founded.  In  the  present 
order  there  is  no  doubt,  no  ambiguity;  and  its  operation  cannot 
be  enlarged  by  the  prefatory  observations  with  which  it  is 
connected.  Indeed.,  they  are  in  perfect  accordance  with  its 
literal,  obvious  meaning;  and  demonstrate,  that  all  which  the 
Chancellor  designed  to  adjudicate,  was,  that  the  auditor  should 
state  certain  accounts  indispensable  to  the  determination  of  the 
questions  in  litigation.  Such  an  order  is  a  mere  preparative  to 
the  decisions  of  the  cause;  and  not  decretal.  Tis  true  the  Chan- 
cellor, in  considering  this  case,  has  discussed  all  the  matters  ' 
both  of  law  and  fact,  which  he  deemed  in  any  wise  involved  in 
the  decree,  eventually  to  be  pronounced;  and  has  distinctly 
declared  what  he  intends  to  decree.  But  his  intentions  form  no 
ground  for  an  appeal :  he  may  abandon  or  change  them  ad  libi- 
tum ;  until  carried  into  effect,  no  injury  can  result  from  them. 
It  is  only,  from  what  he  has  done,  and  not  from  what  he  intends 
to  do,  that  an  appeal  will  lie.  All  that  he  has  done  is  to  direct 
an  audit :  every  disputed  right  and  interest  of  the  parties  re- 
mains undetermined;  and  is,  by  the  express  declaration  of  the 
Chancellor,  to  be  settled  by  his  future  decree.  Until  such 
decree  be  passed,  upon  application  a  commission  to  take  fur- 
ther testimony  might  issue,  an  unquestionable  title  to  the  relief 
prayed  for  might  be  made  out.  If  we  now  sustain  the  jurisdic- 
tion we  are  called  on  to  exercise,  and,  in  accordance  with  the 
appellants  views,  dismiss  the  appellees  bill  of  complaint :  we 
deprive  him  of  all  such  opportunity  of  strengthening  his  claims 
for  relief;  we  in  fact  become  a  court  of  original  not  of  appellate 
judicature.  We  usurp  the  authority  of  the  Chancellor,  and 
reverse  decrees  which  he  never  did  make,  and  perhaps  never 
would  have  made.  Such  a  proceeding  is  utterly  inconsistent 
with  the  character  and  attributes  of  a  Court  of  Appeals. 

But  reasoning  upon  this  subject  is  unnecessary  :  the  question 
is  put  to  rest  by  the  authority  of  Snowden  et  al  vs.  Dorsey  et  al. 
6  Harr.  fy  Johns.  114:  a  case  not  distinguishable  from  that  now 
before  us.  There  the  Chancellor  upon  a  bill  filed  for  the  con- 


•HO         CASES  IN  THE  COURT  OF  APPEALS 

Hagthorp  et  tur.  et  al.  vs.  Hook's  Adm'rs  D.  B.  N 1829. 

veyance  of  land,  ordered  an  account  to  be  taken  of  the  rents 
and  profits;  and  in  the  statement  of  his  views  introductive  of  that 
order  pronounced  his  opinion_(as  here)  that  the  complainants 
claim  to  relief  had  been  established.  Yet,  upon  an  appeal  from 
such  order,  after  argument,  and  a  thorough  examination  of  the 
practice  and  decisions  upon  the  subject,  this  court  dismissed 
the  appeal,  as  being  prematurely  taken  to  an  order,  not  decre- 
tal. 

It  was  urged  in  the  argument  of  the  appellants  counsel,  that 
the  right  of  appeal  in  this  case  was  fully  established  by  the 
doctrine  settled  in  Thompson  vs.  JWKim,  6  Harr.  fy  Johns.  302. 
But  the  cases  are  in  no  wise  analogous.  There,  as  is  justly 
observed  by  the  Chancellor,  to  warrant  the  issuing  of  the  order, 
the  facts  must  be  "either  admitted  or  so  established  as  to  be  open 
to  no  further  controversy  at  any  subsequent  stage  of  the  pro- 
ceedings; and  the  party  making  the  motion  for  such  order  must 
shew  that  he  has  an  interest  in  the  money  called  in;  and  that 
he  who  holds  it  in  his  possession,  has  no  equitable  right  or  title 
to  it  whatever."  Here  to  justify  the  order  for  an  audit,  no  such 
conclusive  establishment  of  facts  is  indispensably  necessary. 
There  material  and  irreparable  injury  was  done  by  the  order, 
let  the  subsequent  decree  of  the  Chancellor  be  what  it  might,  or 
although  no  future  decree  be  ever  made.  Here  no  material 
injury  is  inflicted  on  the  appellants  unless  followed  by  a  decree; 
and  that  decree  too  against  them.  Here  the  order  is  not  de- 
cretal or  final  as  to  the  rights  or  interests  of  the  appellants. 
There  the  order  is  not  only  decretal,  but  in  effect  final  upon  the 
rights  and  interests  of  the  appellants,  and  needed  not  the  aid  of 
any  future  decree  or  order  upon  the  subject.  Ex  natura  rei,  the 
granting  the  order  to  bring  the  money  into  court,  adjudicated 
on  every  right  and  interest  which  the  appellant  claimed.  In  no 
future  order  or  decree  was  it  necessary  to  name  or  even  refer 
to  him  ;  as  to  all  subsequent  proceedings,  he  was  no  longer  a 
necessary  party  in  court.  All  that  remained  to  be  done  in  the 
cause  was,  an  order  for  the  distribution,  among  the  creditors  of 
Heyland  of  the  money  brought  into  court. 


OF  MARYLAND.  311 


Danels  vs.  Taggart's  Adm'r — 1829. 


Strong  efforts  were  made  in  the  argument  to  distinguish  this 
case  from  that  of  Snowden  et  al.  vs.  Dorsey  et  al.  founded  upon 
an  expression  in  the  courts  opinion,  in  Thompson  vs.  JW'Kim, 
stating  that  the  order  passed  in  Snowden  et  al.  vs.  Dorsey  et  al. 
"  bore  no  impress  of  the  Chancellor's  judicial  opinion  upon  the 
merits  of  the  case."  The  order,  it  was  contended,  in  the  case 
at  bar,  did  bear  such  an  impress.  But  the  weight  of  the  argu- 
ment rests  upon  a  misconception  of  this  expression  of  the  court. 
They  did  not  mean  to  say,  that  the  introductory  remarks  to  the 
order  in  Snowden  et  al.  vs.  Dorsey  et  al.  bore  no  impress  of  the 
Chancellor's  opinion  upon  the  merits  of  the  case;  because  the 
reverse  is  most  palpably  the  fact :  it  does  bear  the  impress  of 
his  opinion  :  but  not  of  his  "judicial  opinion."  The  impress  of 
the  Chancellor's  "judicial  opinion,"  in  the  sense  in  which  the 
court  have  used  it,  being  synonymous  with,  what  he  has  ad- 
judged or  decreed. 

APPEAL  DISMISSED,  BUT  WITHOUT  COSTS. 


DANELS  vs.  TAGGART'S  Adm'r. — December  1829. 

T  died  in  a  foreign  country,  leaving  his  partner  K  his  executor  there  ;  who, 
upon  his  return  to  Maryland,  renounced  all  right  to  administer  upon  T's 
estate  here.  Letters  of  administration  were  then  granted  to  the  complai- 
nant, who  filed  a  bill  against  K  and  D,  requiring  an  account  and  settlement 
of  various  claims;  some  of  which  related  exclusively  to  transactions  of  a 
partnership  which  had  subsisted  between  K.  D.  and  T. ;  others,  to  demands  of 
the  intestate  against  both  of  his  surviving  partners;  and  others,  to  misappli- 
cations of  the  intestate's  property,  by  both  and  each  of  them  after  T's  death. 
The  dates  of  these  transactions  were  not  alleged.  To  this  bill,  D  pleaded  in 
bar,  "That  he  finally  settled  and  adjusted  with  K,  executor  of  T  deceased, 
after  the  death  of  the  said  T,  an  account  in  writing,  and  by  said  account,  the 
balance  due  to  the  defendant  by  the  estate  of  the  said  T  on  the  25th  Oct.  1823, 
was  admitted  to  be,  &c.  which  account  is  just  and  true."  The  complainant 
demurred.  The  Chancellor  overruled  the  plea,  and  ordered  the  defendant 
to  answer  over.  HELD,  that  an  appeal  did  not  lie  from  this  order,  which  de- 
cided a  mere  question  of  pleading,  and  settled  no  right  between  the  parties, 
and  that  this  plea  was  void  for  uncertainty. 

The  plea  of  an  account  stated  to  such  a  bill  as  the  present,  cannot  be  sustain- 


CASES  IN  THE  COURT  OF  APPEALS 
i>  .  !      {art's  Ailiu'r.— l>-J:i. 

ed,  unless  it  be  supported  by  ;ms\vi  r,  dt -us  ing  the  receipt  of  any  part  of  the 
money,  for  which  the  defendant  is  called  upon  to  account,  subsequently  to 
the  time  when  the  account  stated,  was  adjusted. 

By  taking  issue  on  a  plea  in  equity,  the  plaintiff  admits  its  sufficiency  as  a  bar, 
if  the  facts  which  it  asserts  are  established  by  proof;  and  if  on  such  an 
.  the  matter  of  the  plea  is  proved,  the  bar  is  complete,  and  the  bill 
must  be  dismissed. 

APPEAL,  from  the  Court  of  Chancery.  The  bill  of  complaint, 
in  this  case,  was  filed  on  the  9th  of  November,  1 824,  by  Wil- 
liam Taggart,  administrator  of  Henry  Taggart,  (now  appellee) 
against  John  D.  Danels,  (the  appellant)  and  John  C.  King. 
The  bill  stated,  that  the  testator,  Taggart,  Danels  and  King, 
as  partners  in  trade,  were  the  owners  of  a  considerable 
amount  of  property  and  choses  in  action,  and  were  largely  in- 
debted to  others;  that  the  testator,  besides  his  undivided  inter- 
est in  this  firm,  had  a  la/ge  amount  of  separate  property  of  his 
own,  consisting  principally  of  vessels,  and  of  debts  due  from 
this  firm  of  Taggart  fy  Co.  and  others ;  that  thus  situated, 
Henry  Taggart  died,  leaving  his  partner,  King  as  his  executor; 
that  afterwards  Danels  and  King,  took,  collected,  and  applied, 
nearly  the  whole  of  the  testator's  property,  as  well  as  that 
which  he  had  held  in  partnership  with  them,  as  that  which  was 
exclusively  his  own,  and  applied  it  to  their  joint  use  and  bene- 
fit ;  that  a  part  of  the  testator's  property  was  taken  and  applied 
by  Danels  to  his  own  individual  use ;  and  that  King  having  re- 
nounced the  office  of  executor  of  Henry  Taggart  in  this  State, 
administration  was  granted  to  the  complainant,  who  now  calls 
on  Danels  and  King  to'  account  for  the  property  so  taken  and 
used  by  them. 

The  defendant,  Danels,  "  by  protestation,  not  confessing  or 
acknowledging  all  or  any  of  the  matters  or  things  in  the  com- 
plainant's bill  of  complaint  contained,  to  be  true,  in  such  manner 
and  form  as  the  same  are  therein  and  thereby  alleged  and  set 
forth,  and  as  to  all  relief  prayed  in  and  by  the  complainant's  bill 
of  complaint,  and  as  to  all  the  discovery  thereby  prayed,  save 
and  except  so  much  thereof  as  prays  this  defendant  may  discov- 
er if  any  account  has  been  settled,  by  this  defendant,  with  the 
said  Henry  Taggart  in  his  life  time,  or  with  his  executors  since 


OF  MARYLAND.  313 


Danels  tw.  Taggart's  Adm'r 1829. 


his  death,  doth  plead  in  bar,  and  for  plea  says,  that  he  this  de- 
fendant, finally  settled  and  adjusted  with  John  C.  King,  executor 
of  the  estate  of  Henry  Taggart,  deceased,  after  the  death  of  the 
said  Taggart,  an  account  in  writing,  and  by  said  account  the 
balance  in  writing  due  to  this  defendant  by  the  estate  of  the 
said  Henry  Taggarton  the  25th  of  October,  1823,  was  admitted 
to  be  $38,341  16,  which  account  is  just  and  true  to  the  best  of 
this  defendant's  knowledge  and  belief." 

The  complainant  "  by  protestation,  not  confessing  all  or  any 
of  the  matters  and  things  in  the  plea  of  the  defendant  John  D. 
Danels,  contained,  to  be  true  in  such  manner  and  form  as  there- 
in set  forth  and  alleged,  does  demur  to  the  said  plea  •,  and  for 
causes  of  demurrer,  among  other  causes  of  demurrer,  shows  that 
the  said  plea  is  not  accompanied,  as  part  thereof,  by  the  account 
therein  referred  to ;  and  further,  that  the  said  plea  is  no  answer 
to,  and  does  not  undertake  to  answer  the  fraud  and  combination 
alleged  in  the  complainant's  bill;  and  that  the  said  plea  in  no 
respect  answers  or  meets  the  charges  of  said  bill,  or  precludes 
the  relief  therein  sought,  or  bars  the  inquiry  therein  made. 
Wherefore,  and  for  divers  other  good  causes  of  demurrer  ap- 
pearing in  said  plea,  this  complainant  does  demur  thereto,  and 
he  prays  judgment  of  this  honorable  court,  whether  he  shall  be 
compelled  to  make  any  farther  and  other  reply  to  the  said  plea ; 
and  he  humbly  prays  that  the  said  Danels  may  be  compelled  to 
answer  over  to  the  said  bill  of  this  complaint,  &c." 

The  defendant,  King,  filed  an  answer  to  the  bill. 

BLAND,  Chancellor.  (December  term,)  1825.  This  case 
standing  ready  for  the  hearing  on  the  demurrer  to  the  plea  of 
Danels,  the  counsel  on  both  sides  were  heard,  and  the  proceed- 
ings were  read  and  considered. 

It  appears  from  the  allegations  of  the  parties,  (and  here  the 
Chancellor  stated  the  substance  of  the  bill  as  before,)  to  which 
Danels  pleads  an  account  settled  with  King,  as  executor  of  Tag- 
art,  in  bar ;  to  which  plea  the  complainant  has  demurred.  The 
plea  of  Danels  is  intended  as  a  bar  to  the  complainants  prayer, 
for  an  account  and  relief  grounded  on  the  three  charges  of  hia 
VOL.  L— 40. 


314         CASES  IN  THE  COURT  OF  APPEALS 

DaneU  rs.  Taggart's  Adm'r. — 1829. 

bill. — First,  that  Dancls  and  King  have  taken,  or  converted  to 
their  own  use,  the  testator's  undivided  interest  in  the  property 
of  the  firm  of  Taggart,  Dancls  and  King.  Secondly,  that 
Danels  and  King  have  taken,  or  applied  to  their  own  use,  the 
testator's  separate  property;  and  thirdly,  that  some  portions 
of  the  testator's  property  have  been  taken  or  applied  by  Dan- 
els  alone,  to  his  individual  use.  If  the  demurrer  to  this  plea 
be  sustainable,  as  has  been  urged,  on  the  ground,  that  the  set- 
tled account  thus  pleaded,  is  not  such  a  one  as  could,  in  any 
form,  be  pleaded  in  bar  to  this  bill,  it  will  relieve  the  court 
from  the  necessity  of  noticing  any  thing  else,  that  has  been  pres- 
sed upon  its  attention  in  the  course  of  the  argument. 

A  settled  account,  is  an  adjustment  of  the  adverse  pretensions 
and  claims  of  two  or  more  parties ;  or  a  mutual  compromise 
and  arrangement  of  their  respective  debits  and  credits.  .  It  is, 
in  effect,  an  agreement  between  the  parties ;  and  operates  re- 
ciprocally like  all  other  contracts  and  agreements.  The  idea  of 
a  settled  account,  or  of  a  contract  or  agreement,  therefore,  ne- 
cessarily involves  the  notion  of  two  parties,  the  one  contracting, 
and  the  other  contracted  with  ;  or  of  parties  who  mutually  agree 
together  in  relation  to  a  particular  subject.  And  this  notion,  as 
to  two  parties,  also  necessarily  supposes  each  of  them  have  not 
only  a  capacity  to  contract,  but  in  almost  every  instance,  a  ca- 
pacity to  sue  and  be  sued.  But  the  capacities  to  contract  and 
to  sue,  with  which  each  adult  citizen  is  endowed,  in  general  is 
without  limit,  for  the  disposition  and  protection  of  his  property 
and  person  against  all  others,  may  be,  and  are,  in  many  instan- 
ces, by  the  particular  nature  of  the  subject  of  the  contract  or 
suit,  enlarged,  modified  or  extinguished.  And  the  general  ca- 
pacity of  an  individual  to  contract  or  to  sue,  may  also  be  circum- 
scribed or  fettered  by  his  representative  or  official  character,  or 
by  the  peculiar  relationship  to  others,  in  which  he  may  be  plac- 
ed. These  positions  need  no  illustration. 

Now  as  to  the  case  before  us;  let  it  be  supposed,  that  Tag- 
gart  and  King  only,  had  constituted  this  firm  or  copartnership; 
in  that  case  it  must  be  admitted,  that  when,  on  the  death  of 
Taggart,  the  two  characters  of  surviving  partner  and  executor 


OF  MARYLAND.  815 


Danels  vs.  Taggart's  Adm'r — 1829. 


devolving  upon  King,  and  became  united  in  himself,  he  could 
not  contract  or  sue  respecting  the  undivided  interest  of  the  tes- 
tator Taggart;  because  King  could  not  contract  with  or  sue 
himself;  and  while  he  chose  to  act  as  executor,  there  would  be 
no  other  party  representing  Taggarfs  interest  to  contract  with 
or  to  sue.  And,  therefore,  if  King,  the  executor  and  surviving 
partner,  was  the  debtor  of  his  testator,  that  debt,  by  operation 
of  law,  would  beco'me  assets  in  his  hands  for  the  benefit  of  the 
creditors  and  representatives  of  the  deceased;  and,  if  he  was, 
on  the  other  hand,  a  creditor,  he  might  retain  out  of  the  assets 
of  the  deceased  the  amount  of  his  claim  against  all  others.  In 
such  case,  it  seems  to  be  quite  clear,  that  King  could  not  have 
the  capacity,  in  any  manner,  to  make  such  a  settlement  of  ac- 
counts, of  himself  alone,  of  the  partnership  affairs  of  Taggart 
and  King  as  would  be  pleadable  in  bar  of  a  bill  like  this,  brought 
by  the  administrator  of  Taggart  against  him  for  an  account. 

But,  in  this  case,  King  is  not  the  only  surviving  partner — 
there  is  another,  Danels ;  and  it  is  Danels  who  pleads  the  settled 
account  with  King  as  executor  in  bar.  But  the  union  of  two 
interests  in  King,  that  of  his  own,  and  his  testator's,  had  de- 
prived him  of  the  capacity  to  make  any  binding  settlement,  or 
agreement  as  to  his  testator's  share  in  relation  to  his  own.  This 
alleged  settlement  then,  if  binding  at  all,  or  in  any  way,  could 
only  operate  between  King  and  Danels;  but  the  whole  partner- 
ship affair,  as  between  Taggart  and  King  would  remain  open, 
or  unaffected  by  it.  This  plea  avers  and  sets  out  the  balance, 
between  Taggart  and  Danels.  But  in  a  partnership  or  joint 
trade,  carried  on  by  three  or  nWe  persons,  it  is  impossible  to 
settle  an  account  with  some  of  the  members  of  the  partnership, 
so  as  to  ascertain  the  balance  due  from  any  one,  to  any  other 
member  of  the  concern;  and  more  especially  so,  as  in  this  case, 
where  the  partner  as  to  whom  the  balance  is  to  be  ascertained, 
is  himself  a  creditor  of  the  firm.  Wherever  a  balance  is  spok- 
en of  as  the  result  of  a  settlement  of  partnership  accounts,  a  par- 
tial estimate  is  never  understood.  It  is  the  result  of  the  adjust- 
ment of  the  whole  and  entire  partnership  concerns. 

It  is  true,  that  these  three  partners  Taggart,  Danels  and  Kingy 


316          CASES  IN  THE  COURT  OF  APPEALS 

Danels  vs.  Taggart's  Adm'r — 1829. 

as  to  their  respective  rights,  might  have  made  any  special 
agreement,  or  settled  in  any  manner  they  thought  proper,  either 
in  person  or  by  their  agents  duly  authorised.  But  King  as  exe- 
cutor had  only  the  general  authority  incident  to  his  office  ;  and 
this  plea  of  Danels  is  not  based  upon  any  special  agreement  of 
any  sort ;  but  upon  a  general  settlement  of  the  entire  partner- 
ship accounts,  and  sets  forth  a  balance  which  could  only  be 
the  result  of  such  an  entire  settlement.  In  this  case,  however, 
no  such  settlement  could  have  taken  place,  in  the  manner  al- 
leged in  the  plea,  with  King  as  executor  of  Taggart ;  because 
King  was  incapable  of  settling,  or  agreeing  with  himself  as  part- 
ner and  executor,  and,  consequently,  Taggarfs  interest  in  the 
alleged  settlement  could  not  have  been  represented  and  protect- 
ed by  any  one  capable  of  settling  and  contracting  for  his  rights. 
For  as  to  the  testator's  rights  and  his  interest,  it  was  as  if  a  set- 
tlement had  been  made  during  his  life  time,  between  Danels  and 
King,  at  which  Taggart  was  not  present,  and  of  which  he  had 
no  knowledge.  So  far  then  as  this  plea  relates  to  a  settled  ac- 
count of  the  partnership  affairs  of  Taggart,  Danels  and  King,  it 
has  no  foundation  and  cannot  be  sustained. 

The  bill  charges,  that  the  testator's  separate  property  was 
also  applied  to  the  joint  use  of  Danels  and  King,  and  prays,  that 
they  may  account  for  that  likewise.  As  to  the  testator's  sepa- 
rate personal  estate,  there  can  be  no  doubt,  that  his  executor, 
King,  might  have  disposed  of  it,  in  like  manner,  as  his  testator 
might  have  done.  And  if  King  had  wasted  it,  in  any  way,  he 
himself  would  have  been  chargeable  with  the  devaslavit ;  but  the 
right  of  any  one,  fairly  acquired,  from  him  would  be  unim- 
peachable. If  King,  as  executor,  had  settled  an  account  with 
Danels,  as  to  any  dealings  which  Danels  had  respecting  the 
separate  estate  of  the  testator,  such  a  settled  account  might 
have  been  pleaded  in  bar,  of  a  bill  brought  against  him  for  an 
account  of  such  dealings  ;  because,  such  a  plea,  in  such  a  case, 
would  be  a  fair  and  direct  avoidance  and  defence  to  such  a  bill. 

But  this  bill  presents  a  case  which  is  formally  and  substantial- 
ly different.  In  equity,  as  well  as  at  law,  the  plaintiff  can  only 
have  relief,  or  recover  according  to  the  nature  of  his  case ;  and  the 


OF  MARYLAND.  317 


.Danels  vs.  Taggart's  Adm'r.— 1829. 


allegata  and  probata  must  substantially  correspond.  The  charge, 
in  this  case,  is,  that  Danels  and  King  jointly  converted  the  pro*- 
perty  of  the  testator,  to  their  joint  use  and  benefit.  This  charge 
cannot  be  sustained  by  proof,  that  either  of  them,  separately  con- 
verted it  to  his  own  separate  use.  They  are  charged  as  joint 
wrong  doers,  who  have  derived  a  joint  benefit  and  advantage  from 
their  wrong;  and  the  proof,  when  produced,  must  be  applica- 
ble to  that  charge,  or  it  is  foreign  from  the  case.  Now  it  cer- 
tainly cannot  be,  that  joint  wrong  doers,  any  more  than  joint 
agents,  will  be  allowed  to  plead  a  stated  account  between  them- 
selves, as  a  bar  to  a  bill  against  them,  for  an  account  of  the 
property  so  by  them  converted.  In  equity,  those  who  have 
jointly  taken  and  used  the  property  of  another;  are  considered 
as  his  trustees  or  bailiffs,  and  as  such  are  held  accountable. 
This  objection  to  this  plea,  applies  with  equal  force,  and  is  an 
additional  objection  to  it,  so  far  as  it  relates  to  the  undivided  in- 
terest of  the  testator  in  the  partnership  funds,  which  the  bill 
charges  Danels  and  King  with  having  taken  and  converted  to 
their  joint  use. 

As  to  the  third  charge,  about  which  the  bill  calls  for  an  ac- 
count; that  is,  as  to  the  property  of  the  testator  Taggart  which 
came  into  the  hands  of  Danels,  and  was  applied  to  his  individu- 
al use.  If  there  had  been  a  settlement  of  accounts  between 
King  as  executor  of  Taggart  and  Danels  in  relation  to  such 
property,  and  such  settlement  had  been  properly  pleaded,  it 
would  have  constituted  a  good  and  sufficient  bar  to  this  charge 
in  this  bill.  But  the  plea  under  consideration  is  not  such  a  one, 
It  is  a  pjea  in  bar  of  all  the  relief/,  and  all  the  discovery  prayed 
by  the  bill,  founded  on  a  settlement  of  accounts  between  Danels 
and  King  as  executor  of  Taggart,  comprehending  all  the  sub- 
jects set  forth  in  the  bill ;  and  it  avers  a  balance  to  be  due  from 
Taggarfs  estate  unto  Danels,  as  the  result  of  that  general,  com- 
prehensive settlement  of  accounts.  In  pleading  an  account 
stated,  as  a  bar,  it  is  essentially  necessary  to  set  forth  the  par- 
ticular balance  found  to  be  due.  But  if,  as  in  this  case,  it  ap- 
pears, that  the  balance  thus  set  out,  and  which  it  is  essentially 
necessary  should  be  averred  to  constitute  a  good  plea  of  an  ac- 


318          CASES  IN  THE  COURT  OF  APPEALS 

Danels  rs.  Taggart's  Adm'r.— 1829. 

count  stated, is deducible  from  a  statement,  and  is  the  result  of 
a  settlement,  the  greater  part  of  which  was  of  no  avail,  or  was 
improper,  it  follows,  that  such  plea  must  be  considered  as  sub- 
stantially defective,  in  one  of  its  most  essential  parts.  It  is  as 
substantially  deficient  as  it  would  have  been,  if  it  had  been 
wholly  silent  as  to  the  balance  ascertained  to  be  due ;  since  a 
specification  of  a  balance  derived  from  a  source  manifestly  vi- 
cious, is  as  no  statement  of  any  balance  whatever. 

Upon  the  whole  it  is  considered,  that  this  plea  is  bad  ;  first, 
because  King  being  himself  executor  and  surviving  partner, 
could  not,  and  had  not  the  capacity  to  make  such  a  settlement 
with  Danels  of  the  partnership  affairs  of  Taggart,  Danels  and 
King,  as  Danels  might  plead  in  bar  of  this  bill ;  secondly,  this 
plea  is  bad,  because,  the  bill  charges  Danels  and  King  with 
having  jointly  converted  to  their  own  joint  use,  as  well  the  undi- 
vided partnership  property  as  the  separate  property  of  the  tes- 
tator, and  to  such  a  charge,  a  settlement  between  Danels  and 
King  can  be  no  bar  ;  and  thirdly,  this  plea  is  bad,  as  to  so  much 
as  relates  to  property  of  the  testator  alleged  to  have  been  con- 
verted by  Danels  to  his  individual  use;  because,  the  balance  set 
out  in  the  plea  is  shown,  by  the  general  reference  to  the  whole 
bill,  to  be  the  result  not  merely  of  an  account  of  such  property, 
but  of  that  inclusive  of  all  the  other  transactions  stated  in  the  bill, 
respecting  which,  an  account  between  Danels  and  King  could 
be  of  no  avail  against  the  complainant.  Decreed,  that  the  plea 
of  the  said  Danels  be,  and  the  same  is  hereby  overruled  ;  that 
the  demurrer  be  sustained;  and  that  the  said  Danels  do  make  a 
full  and  sufficient  answer  to  the  complainant's  bill  of  complaint, 
and  the  matters  therein  charged. 

From  this  decree  Danels  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  ARCHER  and  DORSEY,  J. 

Winchester,  for  the  appellant.  The  bill  of  complaint  in  this 
case  is  simply  a  bill  calling  for  an  account,  and  being  so,  the 
plea  of  an  account  stated  is  a  flat  bar.  The  plea  is  in  proper 
form,  and  is  a  proper  answer  to  such  a  bill.  Mitf.  Plead.  210, 


OF  MARYLAND.  319 


Danels  vs.  Taggart's  Adm'r — 1829. 


211.  The  bill  does  not  charge  fraud,  nor  allege  any  account 
stated,  nor  fraud  in  stating  any  account.  The  plea  is,  there- 
fore, a  proper  answer  to  the  bill.  Cooper's  Plead.  279.  1  Madd. 
Ch.  81  (83.)  Fraud  cannot  be  proved,  unless  it  is  alleged  in  the 
bill.  Westly  vs.  Thomas,  6  Harr.  <^  Johns.  28.  A  surviving  part- 
ner may  be  executor  to  his  deceased  copartner,  as  well  as  a 
debtor  or  creditor  be  executor  to  his  creditor  or  debtor ; — and 
as  such  settle  all  the  affairs  of  the  partnership,  Burden  vs.  Bur 
den,  1  Fes.  and  Beanies,  170. 

Mayer  and  Taney  (attorney  general)  for  the  appellee.  The 
doctrines  of  a  plea  of  an  account  stated  ;  and  whether  or  not 
the  plea  here  pleaded  is  applicable  to  such  a  case  as  this,  are 
fully  commented  upon  and  laid  down  in  Cooper's  Plead.  277, 
279,  252,  225,  228,  229,  282,  283.  Mitf.  Plead.  208,  209, 
211,  236.  Beames  PI.  Eq.  229,  226,  237.  Taylor  vs.  Haylin, 
2  Bro.  Ch.  Rep.  310.  Fernon  vs.  Fawdry,  2  Atk.  119.  Drew 
vs.  Power,  I  Sch.  #  Lef.  182,  192.  Kinsman  vs.  Barker,  14 
Fes.  579.  Newman  vs.  Payne,  2  Fes.  jr.  200  Middleditch  vs. 
Sharland,  5  Fes.  87.  Beaumont  vs.  Boultbee,  Ib.  485.  S.  C.  7 
Fes.  599.  S.  C.  11  Fes.  358.  Lady  Ormondvs.  Autchinson,  13 
Fes.  47.  Chambers  vs.  Goldwin,  5  Fes.  835.  S.  C.  9  Fes.  265. 
Roberts  vs.  Kuffiny  2  Atk.  112.  Roche  vs.  Morgell,  2  Sch.  %  Lcf. 
725,  727,  728.  Bayley  vs.  Mams,  6  Fes.  586,  596.  Goodrich 
vs.  Pendleton,  3  Johns.  Ch.  Rep.  384.  Hawkey  vs.  Simpson,  3 
Atk.  303. 

Where  the  party  is  not  presumed  to  have  a  counterpart  of  the 
account,  it  must  be  produced  with  the  plea  of  an  account  stat- 
ed. Here,  it  could  not  be  presumed,  that  the  complainant  had 
any  knowledge  of  the  settled  account.  Willis  vs.  Jernegan,  2 
Atk.  252.  The  plea  should  be  signed,  Hodder  vs.  Watts,  4 
Price,  18.  Beames  Pkad.  236,  (note  a.)  It  should  deny-  all 
badges  of  fraud,  Goodrich  vs.  Pendleton,  3  Johns.  Ch.  Rep.  384. 
A  charge  amounting  to  fraud  is  a  charge  of  fraud.  A  charge  of 
bad  faith,  is  a  charge  of  fraud;  and  the  plea  should  deny  the 
fraud,  and  all  the  circumstances  amounting  to  fraud.  Beames 
Plead.  34,  35,  236,  237.  It  is  not  stated  in  the  plea,  when  or 
where  the  account  was  settled.  The  executor  of  a  deceased 


320          CASES  IN  THE  COURT  OF  APPEALS 

Danels  vs.  Taggart's  Adm'r. — 1829. 

copartner,  might  by  conniving  with  a  surviving  copartner,  so 
settle  the  accounts  of  the  partnership,  as  to  bring  the  deceased 
partner  indebted  to  the  firm,  and  by  that  means  sink  the  whole 
estate  of  the  deceased  partner,  and  divide  the  profits  between 
themselves.  Whether  or  not  any  such  object  was  in  view,  in 
this  case,  is  of  no  sort  of  consequence.  The  act  is  not  sanc- 
tioned by  principle. 

Wirt  in  reply.  The  only  question  in  this  case  arises  on  the 
pleadings.  Upon  the  coming  in  of  the  plea,  the  complainant 
should  have  amended  his  bill.  No  injury  could  arise  from  this 
mode  of  proceeding.  That  which  is  asked  by  the  bill  is  for  discov- 
ery and  relief.  If  the  plea  is  a  bar  to  relief  it  is  also  a  bar  for 
a  discovery.  Cooper's  Plead,  291.  Is  the  matter  pleaded  a  bar 
to  the  relief?  A  surviving  partner  may  act  as  executor  of 
his  deceased  partner.  This  is  not  denied;  and  if  he  can, 
why  can  he  not  settle  the  partnership  concerns,  and  do  what 
the  deceased  might  have  done?  No  settlement  which  the 
executor  might  make  could  benefit  himself.  He  was  always 
liable  to  be  called  on  by  a  future  administrator  or  the  repre- 
sentatives of  his  intestate.  While  King  was  the  executor  of 
Taggart  he  was  competant  to  give  a  discharge  to  any  debtor, 
&c.  No  fraud  is  charged  in  the  bill  so  as  to  affect  the  plea. 
The  fraud  to  affect  the  plea  must  charge  fraud  in  the  settlement 
and  the  stated  account.  There  is  no  more  charged  in  this  bill, 
than  there  is  in  all  ordinary  bills  against  the  fairest  characters  in 
the  community.  If  it  is  a  bill  for  an  account,  then  is  the  plea, 
an  answer  and  bar  to  the  account  asked  for.  Mitford,  210, 211. 
The  bill  states  that  there  had  been  no  account  settled,  and  calls 
for  one.  The  plea  in  answer  says  that  there  was  an  account 
stated,  &c.  If  the  bill  had  charged  an  account  settled  by  fraud, 
&c.  Then  the  plea  must  have  denied  the  fraud,  &c.  Drew  vt. 
Power,  \  Sch.  &f  Lcf.  1 92.  Cooper's  Pkad.  279.  But  here  no 
fraud  or  error  has  been  alleged  to  have  taken  place  in  the 
account  stated.  The  plea  is  full  to  all  essential  parts.  Why 
did  not  the  complainant  take  issue  on  it,  and  put  the  defendant 
to  his  proof?  The  complainant  might  in  a  variety  of  ways 
have  called  for  the  account.  But  it  is  said  that  the  plea  must 


OF  MARYLAND.  321 


Danels  vs.  Taggart's  Adm'r.— 1829. 


be  good  in  whole;  and  that  if  it  is  bad  in  part,  the  whole  is 
vitiated.    Mitford  Plead.  243.    Cooper's  Pkad.  230. 

DORSEY  J.  delivered  the  opinion  of  the  court — To  the  plea 
of  an  account  stated,  filed  by  the  appellant,  various  causes  of 
demurrer,  both  general  and  special,  were  assigned  by  the  ap- 
pellee; and  upon  hearing,  the  plea  was  overruled  by  the  Chan- 
cellor. To  test  the  correctness  of  that  decision  the  present 
appeal  hath  been  prosecuted. 

A  preliminary  question,  however,  presents  itself  for  the  con- 
sideration of  this  court,  viz :  is  the  decree  or  order,  passed  by 
the  Chancellor  in  this  case,  of  such  a  character,  as  to  vest  in 
the  appellant  an  immediate  right  of  appeal.  That  it  does  not,  we 
think  manifest,  on  reference  to  the  principles  established  in  the 
cases  of  Snowden  et  al.  vs.  Dorsey  et  al.  6  Harr.  and  Johns.  114, 
and  Thompson  vs.  M^Kim,  6  Harr,  and  Johns.  302,  and  Wil- 
liamson vs.  Carnan  et  al.  1  Gill  and  Johns.  184,  and  Hagthorp 
et  al.  vs.  JVea/e,  Jldm'r  of  Hook,  I  Gill  and  Johns.  270.  It  decides 
a  mere  question  of  pleading :  it  settles  no  right  between  the  par- 
ties. "If  the  plea  is  overruled,  the  defendant  may  insist  on  the 
same  matter  by  way  of  answer."  Mitf.  Plead.  248.  The  only 
conclusive  effect  of  the  decision  then  is,  that  it  drives  the  party  to 
the  necessity  of  asserting  the  same  defence  in  a  different  form 
of  proceeding;  the  consequence  of  which  is,  that  he  is  subject- 
ed to  the  expense  of  producing  his  testimony  to  substantiate  the 
allegations,  relied  on  as  his  discharge.  The  same  expenditure, 
he  must  have  incurred, had  issue  been  taken  on  the  plea;  and  for 
this  expenditure,  in  contemplation /of  law,  he  is  indemnified  by 
way  of  costs,  if  successful  on  the  trial.  It  is  not  a  decretal 
order,  which  in  the  language  of  the  court,  in  Thompson  vs. 
JW-Kim,  "decides  and  settles  the  question  of  right  between 
the  parties,"  or,  in  that  of  Williamson  vs.  Carnan  et  al.  which 
"  so  materially  affects  the  rights  and  interest  of  the  party,  as 
to  bring  the  case  within  the  principle  of  Thompson  vs.  M'-Kim;" 
but  it  is  simply  a  decision,  on  a  question  of  pleading,  which 
leaves  the  whole  matter  in  controversy  open  for  future  ad- 
judication. 

VOL.  I.— 41 


3-23          CASES  IN  THE  COURT  OF  APPEALS 
Danels  vs.  Taggart's  Adra'r.— 1829. 

Waiving1,  however,  the  objection  to  the  regularity  of  the  ap- 
peal; the  overruling  of  the  plea  meets  our  entire  concurrence. 
It  is  wanting  in  form  and  defective  in  substance :  it  contains  not 
even  the  common  conclusion,  repeating  the  matters  relied  on  in 
bar  of  the  suit  and  praying  judgment  of  the  court,  whether  the 
defendant  ought  to  be  compelled  to  make  any  further  or  other 
answer  to  the  bill.  The  plea  states,  in  bar  of  the  relief  and 
discovery  prayed  for,  "  that  the  defendant  finally  settled  and 
adjusted  with  John  C.  King,  executor  of  the  estate  of  Henry 
Taggart,  deceased,  after  the  death  of  said  Taggart,  an  account 
in  writing;  and  by  said  account,  the  balance,  in  writing  clue  to  this 
defendant  by  the  estate  of  said  Henry  Taggarty  on  the  25th  day 
of  October,  in  the  year  1823,  was  admitted  to  be  $38,341  16£." 
The  particular  time  or  place,  when  the  alleged  settlement  took 
place,  is  not  slated,  and,  for  aught  that  is  contained  in  the  plea, 
it  might  have  beem  made  in  the  Slate  of  Maryland,  after  the 
granting  of  letters  of  administration  to  the  appellee,  and  even 
after  the  commencement  of  this  suit.  But  suppose  it  be  conce- 
ded that  the  time  of  accounting  was  on  the  25th  of  October, 
1823,  will  this  cure  all  objection  to  the  plea  as  regards  time  ? 
unquestionably  not.  The  bill  charges  the  defendant  with  hav- 
ing collected  (but  says  not  when)  after  the  death  of  Henry 
Taggart,  a  large  amount  or  the  whole  of  the  debts,  due  to  the 
firm  of  Henry  Taggart  ^  Co.  amounting  to  $52,383  33;  with 
having  applied  part  of  the  personal  property  of  Henry  Tag- 
gart, enumerated  in  exhibits  D  and  E,  as  of  the  value  of 
$3260,  to  the  payment  of  Henry  Taggart  fy  Co's  debts;  but 
says  not  at  what  time  the  application  was  made.  The  bill 
also  charges  that  Henry  Taggart,  at  his  death,  was  sole 
owner  of  schooners  Centillo,  Daphne  and  Cleopatra,  and  one 
third  of  schooner  Leano,  and  held  a  large  interest  in  the  Brig 
El  Presidente.  That  all  of  said  vessels  were  taken  posses- 
sion of  and  sold  for  the  sum  of  §16,800;  and  the  proceeds  of 
sale  applied  to  the  defendants  own  use:  but  when  the  sales  were 
made,  and  the  proceeds  received  is  not  stated.  That  the  Brig 
Aquila,  owned  by  Henry  Taggart,  on  her  cruise  between  Feb- 
ruary and  October,  1823,  made  many  prizes,  which  were  con- 


OF  MARYLAND.  828 


Danels  vs.  Taggart's  Adm'r. — 1829. 


demned  and  sold  ;  and  the  proceeds,  amounting  to  upwards  of 
$10,000,  received  by  the  defendants  and  applied  to  their  own 
use,  but  when  received  is  not  alleged.  That  in  a  subsequent 
cruise  she  made  captures,  the  proceeds  of  which  were  received 
by  Danels,  and  amounted  to  upwards  of  $30,000;  and  subse- 
quently made  prizes  of  great  value,  which  were  received  in 
like  manner.  That  Henry  Taggart,  at  his  death,  owned  one 
half  of  the  Brig  El  Vencedor,  the  earnings  of  which,  received  by 
the  defendant,  Danels,  had  been  $64,000,  but  when  received 
does  not  appear.  That  individual  debts,  due  Henry  Taggart, 
at  his  death  were  collected  by  the  defendants,  and  appropriated 
to  their  own  use,  to  the  amount  of  $57,440;  of  the  time  of  re- 
ceipt nothing  is  said.  Admitting  then,  what  the  plea  does  not 
distinctly  aver,  (but  what  is  indispensable  to  its  validity)  the 
time  when  the  account  was  stated,  the  Chancellor  could  not 
have  done  otherwise  than  overrule  the  plea.  It  covers  not  the 
case  set  forth  in  the  bill :  every  word  of  it  may  be  true,  and  yet 
according  to  the  allegations  of  the  complainant,  the  defendant 
may  have  received,  subsequently  to  the  time  of  adjusting  the 
account  stated,  and  be  now  bound  to  account  for,  all  the  items 
hereinbefore  enumerated,  amounting  to  the  sum  of  $234,483  33. 
It  is  therefore  no  bar  to  the  discovery  and  relief  sought  for. 
The  plea,  of  an  account  stated,  to  such  a  bill  as  the  present, 
cannot  be  sustained  unless  it  be  supported  by  an  answer  deny- 
ing the  receipt  of  any  part  of  the  money  for  which  he  is  called 
upon  to  account,  subsequently  to  the  time  when  the  account 
stated  was  adjusted.  But  relieved7 from  this  objection  the  plea 
is  yet  void  for  uncertainty.  It  alleges  that  the  defendant  Dan- 
els,  settled  and  adjusted  with  John  C.  King,  executor  of  Henry 
Taggart,  "  an  account  in  writing;"  but  what  transactions  it  em- 
braced :  whether  it  related  to  all  or  any  of  the  subject  matters, 
now  in  controversy,  we  are  furnished  not  with  even  the  means 
of  conjecture.  For  aught  that  appears  it  may  have  been  an 
account  settled  between  the  parties  of  the  partnership  con- 
cerns of  Taggart  and  Danels,  anlerior  to  the  admission  of 
John  C.  King  into  the  firm;  or  it  may  have  been  a  settlement  of 
transactions  wholly  unconnected  with  all  or  any  of  the  claims  of 


3*4          CASES  IN  THE  COURT  OF  APPEALS 

Coale,  tt  war.  w.  Barney,  tt  war.— 1829. 

which  the  defendants  are  now  called  on  to  answer.  Upon  such 
a  plea  the  plaintiff  could  not  have  taken  issue.  By  doing  so  he 
would  have  admitted  the  sufficiency  of  the  plea  as  a  bar,  if  the 
facts  which  it  asserted  were  established  by  proof.  And  if  on 
such  an  issue  the  account  stated  had  been  proved,  although  it 
might  relate  to  matters  wholly  foreign  to  those  now  in  contro- 
versy, the  bar  would  have  been  complete  and  the  bill  must  have 
been  dismissed. 

"  Ir>  pleading,  (says  Mitf.  Plead.  237,)  there  must  be  the  same 
strictness  in  equity,  as  at  law  ;  at  least  in  matter  of  substance." 
"  A  plea  must  follow  the  bill  and  not  evade  it."  Mitf.  Plead. 
237.  "  All  the  facts  necessary  to  render  the  plea  a  complete 
equitable  bar  to  the  case  made  by  the  bill,  so  far  as  the  plea 
extends,  that  the  plaintiff  may  take  issue  upon  it,  must  be  clear- 
ly and  distinctly  averred."  Mitf.  Plead.  240.  The  same  doc- 
trine is  found  in  Harr.  Ch.  229,  and  Cooper's  Plead.  228.  Apply 
these  principles  to  the  plea  before  us,  and  all  doubt  of  its  insuf- 
ficiency must  instantly  vanish.  Its  defects  are  equally  obvious, 
by  comparing  it  with  the  precedent  of  a  plea,  of  an  account 
stated  to  be  found  in  Harr.  Ch.  618. 

The  plea,  professes  to  be  a  bar  to  all  the  relief  and  discovery 
called  for  by  the  bill,  a  part  of  which  refers  to  specific  pro- 
perty of  the  late  Henry  Taggart,  now  in  the  possessioi  and 
user  of  the  defendant  Danels,  to  such  part  of  the  complainant's 
prayer,  the  plea  of  an  account  stated,  cannot  be  urged  as  a  bar. 

APPEAL  DISMISSED  WITH  COSTY.. 


COALE,  etux.  vs.  BARNEY,  et  ux. — December,  1829. 

Upon  a  merely  equitable  estate,  no  writ  of  partition  can  be  maintained  i 

law. 
A  failure  to  comply  with  an  engagement  to  do  a  mere  nugatory  act,  ought 

not  to  impair  the  rights  of  a  complainant  in  equity  to  relief,  when  the  facts 

of  his  case,  otherwise  concur,  to  sustain  his  bill. 
An  agreement  was  entered  into,  on  the  27th  November,  1813,  between  the 

etstui  que  trusts  for  life,  and  remainder  in  fee,  and  the  trustee,  of  a  certain 

trust  estate,  held  by  the  latter  in  fee,  the  object  of  which  was  to  lease  out 


OF  MARYLAND.  325 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


the  trust  property  then  unimproved,  aud  secure  to  the  cestui  que  trusts  in 
remainder,  an  immediate  participation  in  the  rents.  For  that  purpose  it 
was  agreed,  that  the  trustee  should  appoint  an  agent,  to  make  leases  for 
ninety -nine  years,  with  liberty  of  renewal,  for  such  rents  as  should  be  thought 
reasonable  by  the  parties  interested,  payable  annually  during  the  terms,  to  the 
agent  in  trust,  as  follows  : — viz.  one  half  to  one  c.  q.  t.,  in  remainder,  during 
her  life;  and  after  her  death,  to  her  children,  their  executors  and  administra- 
tors; one  fourth  to  another  c.  q.  t.,  in  remainder  for  life,  with  a  similar  reser- 
vation to  her  children,  &c.  The  other  fourth,  to  the  c.  q.  t.  for  life,  during 
her  life,  and  after  her  death  to  the  last  above  mentioned  c.  q.  t.  in  remainder, 
her  executors  and  administrators.  On  the  29th  September,  1823,  a  bill  was  filed 
by  two  of  the  c.  q.  t.,  against-the  third,  for  a  specific  execution  of  the  agree- 
ment, upon  the  ground  that  the  defendant,  since  the  year  1818,  had  prevent- 
ed the  execution  ofj  the  leases,  and  refused  to  do  any  act,  towards  carrying 
the  contract  into  effect.  This  charge  being  established,  and  it  appearing 
that  the  parties  were  near  relations,  and  that  the  complainants  had  made 
frequent  efforts  for  an  amicable  arrangement,  IT  WAS  HELD,  that  there  was 
an  adequate  consideration  to  support  this  agreement,  for  the  violation  of 
which  damages  to  the  full  extent  of  the  injury  sustained,  might  be  recover- 
ed; that  the  complainants  had  not  slept  upon  their  rights  in  such  a  way,  as  to 
shew  the  contract  had  been  abandoned  ;  that  Chancery  has  power  to  grant 
adequate  relief,  which  could  only  be  done  by  providing  the  means,  neces- 
sary to  carry  into  effect  the  leading  object  of  the  parties,  the  leasing  the 
property  at  reasonable  rents  ;  and  that  in  doing  this,  it  was  the  duty  of  the 
court,  to  gratify  the  minor  provisions  of  the  agreement,  so  far  as  it  could 
be  done  consistently,  with  the  accomplishment  of  the  grand  design. 

The  defendant,  in  this  case,  was  deemed  to  have  forfeited  the  right  of  fix- 
ing the  reasonableness  of  the  rents,  to  be  reserved  in  the  leases  referred  to 
in  the  preceding  contract,  by  shewing  her  determination  to  act  in  such  a 
way,  as  to  render  her  exercise  of  that  ri^ht  wholly  inconsistent  with  the  re- 
lief due  to  the  complainants,  and  her  right  was  therefore  transferred  to 
a  trustee  appointed  for  the  purpose  of  executing  the  agreement ;  which 
trustee  was  enjoined  to  execute  lease/,  for  such  rents,  as  he,  together  with 
the  complainants,  should  think  reasonable. 

Where  an  agreement  contains  provisions,  which,  by  reason  of  some  technical 
principle  of  law,  cannot  be  carried  irtto  effect,  according  to  its  literal  im- 
port, it  is  the  duty  of  a  court  of  equity,  for  the  sake  of  the  intent,  to  give  it 
that  construction  which  the  rules  of  law  will  tolerate;  and  the  intention  of 
the  parties,  to  be  collected  from  the  whole  instrument,  will  justify. 

So  the  interests  of  the  cestoti  que  trusts,  in  remainder,  in  the  property  referred 
to  in  the  preceding  agreement  being  real,  and  not  personal  estate,  and  as 
such,  could  not  be  limited  to  their  executors  and  administrators.  The  court 
decreed  the  rent  to  be  paid  to  the  c.  q.  t.  and  their  heirs,  and  this  as  to  all 
the  parties  entitled  to  such  rents. 


-TS6 


Coale,  tt  iuc.  vs.  Barney,  et  we. — 1829. 


APPEAL  from  the  Court  of  Chancery.  The  bill,  which  was 
filed  on  the  29th  of  September,  1823,  by  the  appellees  against 
the  appellants,  and  Hannah  Kitty  C/wse,  stated  that  John  Eager 
Howard,  by  his  deed  of  conveyance,  bearing  date  the  28th 
February,  1793,  did  convey  to  William  Paca,  a  certain  lot 
of  ground,  situate  in  the  city  of  Baltimore,  upon  the  terms 
and  conditions  of  the  exhibit  A,  hereinafter  set  forth.  That  after 
the  execution  of  the  said  deed,  and  in  the  life  time  of  Samuel 
Chase,  his  daughter  Eliza  Chase  intermarried  with  George 
Dugan  and  Mary  Chase,  the  female  complainant  intermarried 
with  William  B.  Barney,  the  other  complainant.  After  which, 
Samuel  Chase  died,  and  on  the  2d  of  October,  1813,  George 
Dugan  died  intestate,  and  without  issue  of  the  body  of  his  wife 
Eliza.  That  Eliza,  his  widow,  acquired  in  her  right  as  his 
wife,  a  large  amount  of  property,  which  placed  her  in  very 
comfortable,  if  not  affluent,  circumstances.  That  Mary,  the 
female  complainant,  having  several  children,  and  being  in 
straitened  circumstances,  owing  to  ihe  misfortunes  of  her  hus- 
band in  commerce,  the  said  Eliza  and  Hannah  Kitty  Chase, 
the  mother  of  Eliza  and  Mary,  being  desirous  of  bringing  the 
said  property  into  immediate  action  and  use,  and  for  the  benefit 
of  all  parties  interested  in  the  same,  which  would  otherwise 
have  remained  useless,  both  to  Eliza  and  Mary,  during  the  life 
of  their  mother,  did,  together  with  John  P.  Paca,  the  son  and 
heir  of  William  Paca,  and  to  whom  the  trust  aforesaid  had 
descended  by  the  death  of  his  father,  and  with  the  complain- 
ants, execute  an  instrument  of  writing,  whereby  they  agreed 
and  covenanted  to  and  with  each  other  respectively,  according 
to  the  terms  of  the  exhibit  B,  hereinafter  set  forth,  a  copy  of 
which  was  filed  with  the  bill,  and  the  original  of  which  was  to  be 
produced  when  required.  That  Eliza  Dugan,  about  the  29th 
of  January,  1818,  intermarried  with  Skipwith  H.  Coale,  and 
she  has  since  wholly  refused  to  do  any  act  whatever,  to- 
wards carrying  into  effect,  the  agreement  and  covenant  afore- 
said, and  hath  actually  notified  John  P.  Paca,  and  all  the 
other  parties  interested,  that  she  will  never  consent  that 
the  same  shall  be  carried  into  effect.  That  in  consequence  of 
such,  her  refusal  to  comply  with  her  said  agreement,  such 


OF  MARYLAND.  327 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


persons  as  are  desirous  of  taking  leases  upon  the  said  lot  of 
ground,  have  been  and  still  are  deterred  from  doing  so;  and 
John  P.  Paca  being  but  a  trustee,  and  knowing  that  Eliza  is  in 
justice  and  equity  bound  to  fulfil  her  agreement  and  covenant, 
is  yet  unwilling  to  incur  the  hazard  which  he  apprehends  from 
executing  the  power  of  attorney  aforesaid.  That  by  the  bad 
faith  and  refusal  of  Eliza,  the  complainants  are  greatly  damni- 
fied, and  scarce  possess  the  means  of  providing  for  the  subsist- 
ence, much  less  for  the  education  of  the  children  of  Mary. 
That  she  and  her  sister  Eliza  were  educated  and  entered  life 
together,  and  Eliza,  at  the  time  of  executing  the  said  contract, 
and  until  her  last  intermarriage,  was  altogether  childless;  while 
.Mary,  who  is  the  youngest  sister,  was  the  mother  of  several 
children,  and  hath  since  had  several  others,  for  whose  mainten- 
ance and  education,  tenderness  and  duty  alike  have  always 
heretofore,  and  now  doubly  prompt  her  to  provide.  The  bill 
had  a  general  interrogatory,  and  also  a  special  one  as  to 
Eliza's  conduct,  and  whether  she  did  not  execute  the  aforesaid 
agreement  in  manner  and  form,  and  under  the  circumstances 
aforesaid,  and  prays  that  Eliza  may  be  compelled  to  do  all 
such  acts  in  the  law  as  may  be  necessary  specifically  to  put 
into  execution  her  contract  or  agreement  aforesaid,  according 
to  its  true  intent  and  meaning,  &c.  The  bill  also  prays  for  all 
relief  proper  in  the  premises. 

The  Exhibit  .#,  is  a  deed  from  John  Eager  Hoicard  to  William 
Paca,  dated  the  28th  of  February,  1793,  whereby  in  considera- 
tion of  the  sum  of  five  shillings,  the/said  Howard  conveyed  to  the 
said  Paca,  his  heirs  and  assigns  forever,  all  that  part  of  a  parcel 
of  a  tract  of  land  called  Lunn's  Lo£,  beginning  for  the  said  part 
at,  &c.  containing  21-8  acres  of  land.  To  have  and  to  hold  the 
following  part  of  the  said  parcel  of  land  beginning,  £c.  containing 
one  half  acre  and  one  thirty-second  part  of  an  acre  of  land,  unto 
the  said  Paca,  his  heirs  and  assigns  forever,  in  trust  to  and  for 
the  uses,  &c.  that  is  to  say :  In  trust  for  the  use  and  behoof  of 
Samuel  Clw.se,  and  Hannah  Kitty  Chase  (wife  of  the  said  Samtiel 
Chase)  for  and  during  their  joint  natural  lives,  and  the  life  of 
the  survivor  of  them ;  and  after  the  death  of  the  said  Samuel 


CASES  IN  THE  COURT  OF  APPEALS 

Coale,  et  ui.  v».  Barney,  et  ux. — 1829. 

and  Hannah  Killy,  to  have  and  to  hold  one  undivided  moiety 
or  half  part  of  the  said  land  and  premises,  in  trust  for  the  use 
and  behoof  of  Eliza  Chase,  daughter  of  the  said  Samuel  and 
Hannah  Kitty,  and  the  heirs  of  the  body  of  the  said  Eliza 
Chase,  and  to  have  and  to  hold  the  other  undivided  moiety  or 
half  part  of  the  said  land  and  premises,  in  trust  for  (he  use  and 
behoof  of  Mary  Chase,  daughter  of  the  said  Samuel  and  Hannah 
A't/fy,and  the  heirs  of  the  body  of  the  said  Mary  Chase;  and  in  case 
of  the  death  of  either  Eliza  or  Mary  without  issue,  cross  remain- 
ders between  them  in  tail,  and  with  remainders  over  to  Samuel 
and  Thomas  Chase  (sons  of  the  first  mentioned  Samuel)  in  distinct 
halves  in  tail,  with  cross  remainders  in  tail  between  them;  and 
with  final  remainders  to  Jinn  Chase  (daughter  of  the  said  Samuel) 
as  to  one  half,  and  to  her  heirs  in  fee  simple;  and,  as  to  the 
other  half,  to  Matilda  Ridgely  (another  daughter  of  the  siad 
Samutl)  in  like  manner.  To  have  and  to  hold  all  the  residue 
of  the  said  part  of  the  parcel  of  land,  first  above  mentioned  and 
described  unto  the  said  Paca,  his  heirs  and  assigns  forever, 
in  trust  to  and  for  the  several  and  same  uses,  intents  and  pur- 
poses before  mentioned,  of  and  concerning  the  part  of  the  said 
parcel  of  land  last  above  mentioned;  and  on  the  further  trust,  &c. 
The  Exhibit  B,  is  an  agreement  entered  into  on  the  27th 
of  November,  1813,  between  John  P.  Paca,  Hannah  Kitty 
Chase,  Eliza  Dugan,  William  B.  Barney  and  Mary  his  wife, 
reciting  that  "  John  P.  Paca  is  at  this  time  seized  in  fee  simple, 
in  trust  for  the  said  Hannah  Kitty  Chase,  Eliza  Dugan  and 
Mary  Barney,  of  and  in  a  certain  piece  or  parcel  of  ground,  in 
the  city  of  Baltimore,  fronting  on  Lexington  street,  the  breadth 
of  175  feet,  and  on  Eulaw  street,  186  feet,  and  binding  westward- 
ly  on  Walshes  alley,  and  on  the  south  with  an  alley  called 
Chases  alley,  which  piece  or  parcel  of  ground  is  at  present 
unimproved.  And  whereas,  it  is  thought  by  the  parties  inter- 
ested, that  it  would  be  for  their  mutual  benefit,  that  the  said 
property  should  be  divided  into  lots,  and  demised  for  ninety- 
nine  years,  with  liberty  of  renewal,  for  such  rents  as  may  be 
thought  reasonable  by  the  parties  interested,  to  be  reserved  by 
the  said  leases,  payable  annually  during  the  said  terms.  And 


OF  MARYLAND.  329 


Coale,  et  iix.  vs.  Barney,  et  ux — 1829. 


whereas,  by  reason  of  the  distance  of  the  said  John  P. 
Paca's  residence,  from  this  city,  it  would  be  inconvenient  for 
him  to  execute  the  said  leases,  and  to  attend  to  the  collection 
of  the  said  rents,  now,  therefore,  these  articles  witnesseth,  that 
the  above  mentioned  John  P.  Paca,  Hannah  Kitty  Chase,  Eliza 
Dugan  and  William  B.  Barney  and  Mary  his  wife,  have  mutu- 
ally and  separately  for  themselves,  their  heirs,  executors  and 
administrators,  agreed  and  covenanted,  to  and  with  each  other, 
respectively,  and  to  and  with  their  respective  executors  and 
administrators,  that  the  said  John  P.  Paca  shall,  and  will,  by 
a  good  and  sufficient  power  of  attorney,  by  him  duly  executed, 
constitute  and  appoint  Cumberland  Dugan,  of  the  city  of 
Baltimore,  his  attorney,  for  the  purpose  of  executing  such  leaT 
ses,  and  giving  thereby  full  power  and  authority  so  to  do.  In 
which  leases,  the  rents  shall  be  reserved  to  be  paid  to  the  said 
Cumberland  Dugan,  his  executors  or  administrators,  in  trust  for 
the  said  Hannah  Kitty  Chase,  Eliza  Dugan  and  Mary  Barney, 
in  the  following  proportions :  In  trust  as  to  one  half  of  all  such 
rents  to  be  paid  to  the  said  Mary  Barneys  sole  and  separate 
use,  during  her  life,  annually,  to  her,  and  after  her  death  to  be 
paid  to  her  children,  their  executors  or  administrators,  in  equal 
shares;  to  be  discharged,  during  her  life  time,  by  her  receipt," 
fee.  And  as  to  one  fourth  part  of  the  said  rent,  in  trust  to  be 
paid  to  the  said  Eliza  Dugan,  her  executors  and  administrators. 
And  as  to  the  other  fourth  part,  in  trust  to  be  paid  to  the  said 
Hannah  Kitty  Chase,  during  her  life,  and  after  her  death,  to 
the  said  Eliza  Dugan,  her  executors,"  &c.  Signed  and  sealed 
by  all  the  said  parties. 

The  only  answers  material,  were  those  of  Coale,  and  wife. 
They  answered  separately.  Coale  answers  as  to  his  hearsay  and 
belief,  that  Mrs.  Chase  had  not  performed  the  consideration,  on 
which  the  said  agreement  was  founded, — that  of  barring  the  entail 
of  the  said  lot  or  parcel  of  ground,  by  uniting  in  a  conveyance  ; 
that  she  had  made  leases  of  the  ground  in  question ;  that  Barney 
and  wife  had  mortgaged  their  estate  in  it,  and  that  the  agreement 
had  been  abandoned.  Mrs.  Coale,  in  her  answer  alleges,  that  her 
mother  agreed,  but  now  refuses  to  unite  with  the  other  persons 
VOL.  I.— 42 


330          CASES  IN  THE  COURT  OF  APPEALS 

Coale,  et  WJT.  t»s.  Barney,  tt  ux. — 1829. 

having  the  remainder  in  tail,  to  bar  the  entail,  which  was  the  con- 
sideration of  the  agreement  of  leasing.  That  the  agreement,  ex- 
cept upon  that  consideration,  was  without  inducement  or  con- 
sideration at  all.  That  she  had  notified  her  opposition  to  the 
leases  of  the  property,  because  her  mother  had  violated  the 
understanding  on  which  the  agreement  was  entered  into.  That 
she  has  children  now,  and  that  she  offered  to  let  the  agreement 
be  executed,  if  she  should  be  allowed  one  half  of  the  three- 
fourths  of  the  rents. 

The  complainants  and  defendants  counsel  on  these  answers 
coming  in,  ordered  the  register  "  to  file  the  general  replication," 
and  to  issue  a  commission  to  a  person  named  by  them.  An 
agreement  was  entered  into,  to  set  the  cause  down  for  hearing 
at  December  term,  1 825,  with  liberty  to  either  party  to  examine 
witnesses  under  a  commission. 

BLAND,  Chancellor,  (December  term,  1825.)  It  appears 
from  the  proceedings,  that  the  articles  of  agreement  mentioned 
in  the  bill  of  complaint,  bearing  date  on  the  27th  of  No- 
vember, 1813,  ought  to  be  specifically  performed  and  exe- 
cuted, according  to  the  true  intent  and  meaning  thereof,  as 
prayed. — Decreed,  that  Cumberland  Dugan  be,  and  he  is  here- 
by constituted  and  appointed  a  trustee  for  the  purpose  of  exe- 
cuting and  performing  the  said  agreement;  and  the  said  trus- 
tee, shall  immediately  proceed  to  make  such  a  lease  or  leas- 
ses,  of  the  piece  or  parcel  of  ground  described  in  the  said 
articles  of  agreement,  in  such  manner  and  upon  such  terms  as  he 
shall  deem  most  advantageous  and  beneficial  to  all  the  parties 
concerned  and  interested  in  the  same.  In  which  lease  or  leases 
the  rents  shall  be  reserved,  and  made  payable  unto  the  said 
trustee,  his  heirs  and  assigns,  in  trust  for  the  said  Hannah  Kitty 
Chase,  Eliza  Coale,  and  Mary  Barney  in  the  following  manner, 
to  wit.  In  trust,  as  to  one  half  of  all  such  rents,  to  be  paid  to 
the  said  Mary  Barney's  sole  and  separate  use,  during  her  life 
annually  to  her,  and  after  her  death  to  be  paid  to  her  children, 
their  executors  or  administrators,  in  equal  shares ;  to  be  dis- 
charged during  her  life  time  by  her  receipt,  &c.  And  as  to  one 


OF  MARYLAND.  831 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


fourth  of  the  said  rent,  in  trust,  to  be  paid  to  the  said  Eliza 
Coale,  her  executors  and  administrators.  And  as  to  the  other 
fourth  part,  in  trust,  to  be  paid  to  the  said  Hannah  Kilty  Chase 
during  her  life,  and  after  her  death  to  the  said  Eliza  Coale,  her 
executors,  &c.  Decreed  also,  that  Coale  and  wife  pay  all  the 
costs  of  this  suit.  From  this  decree,  Coale  and  wife  appealed 
to  this  court. 

The  cause  was  argued  before  EARLE,  MARTIN  and  DOR- 

8EY,  J. 

Mayer,  for  the  appellants,  insisted.  1.  That  the  agreement 
for  leasing  the  property  was  inoperative,  and  could  not  be  re- 
garded by  a  court  of  equity.  2.  That  the  bill,  answers  and  pro- 
ceedings, do  not  present  a  case  fit  for  the  cognizance  or  specific 
interposition  of  Chancery.  3.  That  it  was  the  duty  of  the  com- 
plainants to  allege  the  equitable  merits  of  their  claim — leaving 
no  doubt  of  those  merits.  4.  That  the  bill  shows  no  equitable 
right ;  and  the  answers  of  the  appellants,  rebut  all  pretensions  of 
the  bill.  5.  That  upon  the  bill,  answers  and  proceedings,  the 
decree  was  erroneous. 

1.  The  answer  of  the  defendant  Mrs.  Coale,  is  strictly  re- 
sponsive to  the  bill ;  and  although  there  is  a  general  replication, 
and  no  testimony  taken,  yet  it  was  incumbent  on  the  complai- 
nants to  prove  their  case.     The  case  must  be  considered  on  the 
bill  and  answers.     The  complainants  must  satisfy  the  court,  that 
the   agreement  to  be  enforced  is  liable  to  no  suspicion,  and 
equitably  fit  to  be  carried  into  effect.  2  Pow.  on  Cont.  222. 
Seymour  vs.  Delancey,  6  John.  Cfi.  Rep.  222.     1  Madd.  Chan. 
321. 

2.  The  agreement  cannot  be  enforced.    It  depended  on  the 
discretion  of  Mrs.  Coale,  whether  she  would  carry  it  into  effect, 
or  not.     Equity  can  have  no  cognizance  of  it.     The  agreement 
gave  Paca  no  more  authority  than  he  before  possessed.    He  had 
no  power  to  lease.     For  the  non-fulfilment  of  the  agreement 
none  but  nominal  damages  were   sustained.     Voluntary  cove- 
nants are  not  to  be  enforced  in  equity,  1  Madd.  Chan.  321, 
327,  328.    Minium  vs.  Seymour,  4  Johns.  Ch.  Rep.  497.    Nor 


CASES  IN  THE  COURT  OF  APPEALS 

Coale,  tt  ux.  r«.  Barney,  et  ux. — 1829. 

in  any  c:isr,  where  none  but  nominal  damages  can  be  recovered 
at  law.  1  Madd.  Chan.  288,  321,  328.  Stapiltonvs.  Stapilton, 
I  Jltk.  10.  Here  only  nominal  damages  would  be  recovered  for 
refusing  to  permit  Dvgan  to  be  appointed  an  attorney  to  make 
the  leases.  It  was  only  a  covenant  for  the  delegation  of  a  pow- 
er. How  could  a  decree  be  made  to  enforce  the  agreement? 
It  is  true,  the  Chancellor  has  passed  one,  constituting  Dugan  the 
attorney  to  execute  the  leases ;  but  it  is  wholly  inequitable. 
Mrs.  Barney  is  one  of  the  complainants.  She  makes  no  conces- 
sion, and  has  no  right  to  call  lor  the  execution  of  the  agree- 
ment. 

3.  But  there  has  been  laches  fatal  to  the  complainants'  case. 
The  agreement  was  entered  into  in  1813,  and  the  bill  was  filed 
in  1823.     Specific  performance  will,  therefore,  be  refused.  1 
Madd.  Ch.   239,  330.  Marquis  of  Hertford  vs.  Boore,  5  Fes. 
720  (note  6.)  Guest  vs.  Horn/ray,  Ib.  818,  822. 

4.  There  is  no  allegation  in  the  bill  that  the  property  could 
be  leased  upon  advantageous  terms. 

5.  The  answer  of  Mrs.  Coale  is  separate  from  that  of  her 
husband.     Husband  and  wife   must  answer  jointly.    Cooper'* 
Plead.  24,  30. 

Winchester,  for  the  appellees.  The  whole  of  what  has  been 
urged,  by  the  counsel  of  the  appellants  might  be  admitted,  as 
having  nothing  to  do  with  the  case  before  the  court.  The  de- 
fendants who  resisted  this  proceeding,  must  sustain  their  case  by 
proof  in  support  of  their  answers.  The  answers  are  not  re- 
sponsive to  the  bill.  The  agreement  is  a  common- one  to  change 
the  situation  of  the  title  to  the  property.  It  is  a  contract  for  a 
valuable  consideration.  The  interest  in  the  property  was  in  Mrs. 
Chase  during  her  life;  and  she  and  her  daughters  with  a  full 
knowledge  of  the  subject,  executed  the  agreement.  There  is 
no  remedy  for  enforcing  it,  unless  it  can  be  enforced  in  equity. 
The  court  of  chancery  can  enforce  this  contract.  1  Madd.  Ch. 
286.  If  the  allegations  in  Mrs.  Coalers  answer,  were  all  prov- 
ed, yet  they  have  nothing  to  do  with  the  claim  set  up  by  Mrs. 
Barney,  to  have  the  agreement  carried  into  effect.  But  there 


OF  MARYLAND.  833 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


is  no  proof  of  any  of  the  allegations  in  the  answer  of  Mrs. 
Coale.  The  agreement  is  admitted — there  is  no  suspicion  of  its 
improper  execution. 

But  it  is  urged  that  the  complainants  have  sustained  no 
damage,  or  if  any,  only  nominal  damages.  Suppose  at  law,  it 
was  proved  that  the  property  could  have  been  leased  for 
$1,500  or  $2,000,  but  for  the  objection  of  Mrs.  Coale  to  exe- 
cute the  agreement,  would  Mrs.  Barney  be  turned  off  with 
nominal  damages.  It  is  also  alleged  that  there  is  no  equity  set 
forth  in  the  bill.  This  is  never  done  where  it  is  for  a  specific' 
execution  of  a  contract,  as  the  contract  is  to  speak  for  itself.  The 
non-execution  of  the  contract  is  shown  by  Mrs.  Coale  in  her 
answer,  shewing,  that  she  prevented  its  execution.  It  is  admit- 
ted that  voluntary  covenants  or  contracts  are  not  enforced  in 
equity  ;  but  it  is  denied  that  this  is  a  voluntary  contract  within 
the  meaning  of,  1  Madd.  Chan.  321,  327. 

It  has  been  said  that  the  complainants  have  been  guilty  of 
laches.  This  must  depend  upon  all  the  circumstances  of  the 
case,  and  the  connexion  of  the  parties  to  each  other. — Here 
were  sisters,  who  no  doubt,  were  not  desirous  of  going  to  law, 
It  is  not  similar  to  the  ordinary  cases,  of  persons  wholly  uncon- 
nected by  relationship.  It  is  not  a  contract  of  purchase  and 
sale ;  but  it  is  a  family  compact  in  which  all  had  a  right  to 
move.  Forbearance,  therefore,  was  a  duty,  and  it  was  meri- 
torious. Mrs.  Coale,  in  her  answer,  shows  that  the  subject  was 
constantly  a  source  of  correspondence  between  her  and  her 
sister,  &c.  and  that  a  new  agreement  was  at  one  time  in  agita- 
tion. 

Taney,  (Attorney  General)  and  Mayer  in  reply. 

1 .  The  court  will  observe  that  the  real  estate  in  question  in 
the  cause  stands  conveyed  to  Mrs.  Chase  for  life,  with  remain- 
der as  to  one  moiety  to  Mrs.  Coale,  the  appellant,  in  tail  gener- 
al, and  as  to  the  other  moiety  to  Mrs.  Barney,  the  appellee, 
also  in  tail  general.  The  leases  cpntemplated  by  the  agree- 
ment, which  is  sought  to  be  enforced,  reserve  one  fourth  of  the 
rents  to  Mrs.  Chase,  for  life,  another  fourth  to  Mrs.  Coale,  and 


331  CASES  IN  THE  COURT  OF  APPEALS 

Coale,  tt  ux.  v*.  Barney,  tt  ux. — 1829. 

" her  executors  and  administrators"  and  the  remaining  half  to 
Mrs.  Barney  for  life,  and  to  her  children,  and  their  executors 
and  administrators  after  her  death,  and  reserving  further  to 
Mrs.  Coale  and  her  "  executors  and  administrators"  after  Mrs. 
Chase's  death,  the  part  of  the  rents  secured  to  Mrs.  Chase. 
The  result  of  this  prescribed  reservation  of  rents  is,  that  Mrs. 
Coale  has  only  a  life  estate  in  the  rent  assigned  to  her,  and  that 
after  her  and  Mrs.  C/iase'*  deaths,  the  rents  as  to  one  half,  will 
entirely  cease,  neither  accruing  to  the  children  of  Mrs.  Coale  as 
her  heirs,  nor  devolving  upon  Mrs.  Barney  or  her  children,  by 
force  of  any  constructive  limitation,  and  the  tenant  will  enjoy 
half  of  the  ground  free  of  rent.  Co.  Lilt.  47  a.  2  Roll.  Abr.  289, 
450.  Dyer  45.  12  Co.  35.  Cro.  Car.  290.  This  is  manifestly 
a  most  unreasonable  stipulation,  and  so  glaringly  unjust  to  Mrs. 
Coale  and  her  children,  that  we  presume  the  court  will  not  ef- 
fectuate an  agreement,  that  involves  such  a  forfeiture  of  prior 
admitted  rights.  If  Mrs.  Coale  had  an  estate  tail  general  in 
the  land,  the  rents  in  all  fairness  ought  to  be  co-extensive  with 
such  an  interest,  and  any  retrenchment,  especially  one  which  in- 
jures her  without  benefiting  the  other  parties,  must  be  pronounced 
inequitable  in  the  agreement  under  consideration.  We  are  told, 
that  "  every  agreement  to  merit  the  interposition  of  a  court  of 
equity  in  its  favor,  must  be  fair,  just,  rea&nable,  bona  fide,  cer- 
tain in  all  its  parts,  mutual,  useful,  made  upon  a  good  or  valuable 
consideration,  not  merely  voluntary."  2  Powell  Contr.  221.  3 
Ves.  420.  4  Fes.  480.  9  Fes.  608.  Now,  regarding  the  ineffec- 
tual reservation  of  rent  as  to  Mrs.  Coale,  if  this  agreement  be 
tested  by  the  rule  we  have  stated,  it  will  be  found  without  any 
of  the  equitable  qualities,  that  agreements  must  have  to  be  coun- 
tenanced by  this  court  and  specifically  enforced.  Can  it  be 
said  to  be  "/air,  just  and  reasonable,"  that  Mrs.  Coale  and  her 
children  should  be  thus  cut  off  from  the  substance,  of  nearly  her 
whole  estate  in  this  land?  If  not — where,  looking  to  the  other 
elements  of  the  rule,  can  it  be  shown  that  the  agreement  in  this 
respect,  is  "  mutual,"  or  has  a  good,  and  valuable  consideration  ? 
Can  it  be  urged  that  the  enjoyment  of  one  fourth  of  the  rent  for 
her  mother's  life,  is  any  equivalent  for  the  privation  of  valua- 


OF  MARYLAND.  335 


Coale,  et  MX.  vs.  Barney,  el  ux. — 1829. 


ble  estate  in  tail  general,  and  the  disinheritance  of  her  children? 
The  suggestion  will  not  bear  an  argument. — By  all  the  principles 
then  that  govern  the  jurisdiction  of  the  court  in  such  cases  of  spe- 
cific performance,  this  agreement  cannot  be  sustained  and  carried 
into  effect  according  to  its  terms,  and  the  court  must  con- 
sequently repudiate  it  unless  they  have  some  power  para- 
mount to  the  literal  terms  of  the  writing,  by  which  they  may 
give  it  effect  without  doing  the  injustice  we  have  spoken  of. 
Have  the  court  this  power  of  substituting  phraseology,  and  de- 
creeing, as  if  the  agreement  reserved  the  rent  conformably  to 
the  estate — to  Mrs.  Coale  and  her  heirs  ? 

We  are  told  that  courts  of  equity  can  no  more  make  con- 
tracts for  men  than  courts  of  law.  Lord  Mansfield,  Hoth  am 
vs.  East  India  Company,  Doug.  277.  The  construction  of  a 
contract  is  all  that  courts  of  Law,  or  even  of  equity  ever  preten- 
ded to; — not  the  formation  of  contracts.  Courts  of  Equity,  acting 
as  to  the/orm  and  mode  of  giving  effect  to  contracts  may  be  sup- 
posed to  have  gone  the  length  of  even  devising  new  contracts,  so 
as  to  bring  into  operation  the  so  called  spirit  of  the  contract.  But  it 
will  be  found,  that  the  contract  in  its  prescribed  boundaries  is  the 
text  which  they  respect,  and  although  courts  of  equity  assume  a 
discretion  as  to  the  mode  and  form  of  assuring  the  benefit  of  the 
contract,  the  sphere  of  that  benefit  is  always  the  express  and 
defined  scope  of  the  contract  itself.  It  is  true  that  courts  of  Equi- 
ty in  regard  to  charitable  uses,  exercise  a  sort  of  controling  dis- 
cretion, and  execute  the  general  intention  of  the  party,  as  deno- 
ted, without  any  regard  to  limitations  or  any  of  his  specific  views, 
where  the  statute  opposes  them.  /  But  this  power  is  given  by 
the  statute  of  charitable  uses,  or  derived  from  it,  at  least,  by 
construction.  At  common  law,  no  such  power  is  asserted  in 
any  judicature.  The  cy-pres  preformance  of  conditions,  for 
instance,  does  not  presume  to  transcend  the  express  limitations — 
but  the  doctrine  simply  requires  that  so  much  of  the  assigned 
condition  as  can,  shall  be  fulfilled — but  it  sanctions  no  construc- 
tive equivalent — no  discretional  substitution.  The  most  obvi- 
ous and  noted  instances  of  the  seeming  departure  of  courts  of 
Equity,  from  the  terms  of  contracts  in  dictating  specific  per- 


:yjr»          CASES  IN  THE  COURT  OF  APPEALS 

Coale,  ( (  K.r.  vs.  Barney,  <  /  ux. — 1829. 

formancc,  are  cases  of  marriage  settlement.  1  JVewl.  Cont.  Ch. 
19.  Pow.  Con.  40.  But  on  examination  it  will  be  found,  that  the 
courts  do  not  there  enlarge  or  contract  the  scope  of  the  benefit 
as  declared  and  defined  by  the  contract — or  increase  or  diminish 
the  persons  or  objects  to  be  benefited,  as  explicitly  set  forth  by 
the  contract  itself.  Thus  where  there  is  an  agreement  in  con- 
sideration of  marriage,  to  settle  an  estate  on  the  husband 
and  the  heirs  of  his  body  from  the  marriage,  a  Court  of  Chance- 
ry very  properly  esteem  the  children  of  the  marriage  within  the 
marriage  consideration,  and  included  in  the  "heirs  of  the  body," 
and,  inferring  that  those  heirs  are  to  be  benefited,  (just  as  the 
common  law  in  all  estates  tail  infers,)  an  agreement  of  such  a 
tenor,  is  executed  in  Chancery  by  a  strict  settlement  on  the  hus- 
band, and  his  sons  and  the  heirs  of  the  body  of  such  sons.  But 
here,  and  so  in  all  the  instances  in  the  books,  the  court  acts  with- 
in the  range  of  the  expressed  contract;  its  test  being  that  it  shall 
have  no  occasion  to  superadd  any  thing  to  the  contract  in  order 
to  consummate  it; — and  adopting  the  safe  principle,  that  the 
court  shall  not  take  upon  itself  the  sentiments,  and  identify  itself 
with  the  situation  of  the  party,  but  interpret  his  views  as  his 
words  denote  and  limit  them  in  his  contract — when  all  fair 
equitable  circumstances  concur  to  incite  it  to  act  at  all. 

Courts  of  equity  have  the  same  principles  that  Courts  of 
law  acknowledge  in  defining  and  circumscribing  their  discre- 
tional power ;  but  acknowledge  the  actual  convention  of  the 
parties  as  the  only  subject  of  their  consideration,  and  its  declar- 
ed scope,  therefore,  as  marking  out  the  latitude  of  their  discre- 
tion. And  without  the  principles  which  have  been  asserted,  no 
such  thing  as  a  defined  contract  can  exist,  and  judicial  power 
will  supersede  all  private  right,  and  judicial  discretion  be  desul- 
tory and  boundless.  Now,  if  the  agreement  in  question  in  this 
cause  were  silent  as  to  the  appropriation  of  rents,  equity,  accor- 
ding to  common  law  itself,  would  give  them  to  the  holders  of 
the  estate.  But  here  the  terms  of  the  leases  in  this  particular 
are  unequivocally  limited — and  no  other  appropriation  can  be 
made  that  will  not  contradict  the  express  reservation.  Expres- 
sio  unius  est  exclusio  alterius.  The  conclusion,  therefore,  must 


OF  MARYLAND.  337 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


be  that  the  court  cannot  add,  or  interpolate,  any  words  to  give 
the  contract  a  just  and  legitimate  effect;  and,  unable  to  execute 
it  as  it  exists  with  all  the  inequitable  consequences  it  now  in- 
volves, they  will  leave  it,  to  avail  as  it  may  at  common  law. 

2.  There  is  another  circumstance  which  appears  to  us  con- 
clusive against  the  interference  of  the  court  for  the  specific  per- 
formance of  this  contract.  The  citations  we  have  made  show 
that  a  contract,  to  be  entitled  to  specific  performance,  must  be 
mutual — all  parties  must  be  bound  to  perform  it. — To  use  lord 
Eldorfs  words,  2  Powell,  232,  234.  4  Fes.  849,  "  all  parties 
must  be  bound,  or  none." — Now,  how[  stands  this  point  of  reci- 
procal co-equal  obligation  in  regard  to  the  present  agreement  ? 
The  agreement  is  between  Mrs.  Chase — Mrs.  Barney  and  her 
husband — and  Mrs.  Coale,  while  a  widow.  Will  it  be  said 
that  Mrs.  Coale  could  legally,  or  even  equitably,  enforce  this 
contract  against  Mrs.  Barney,  whose  proper  estate  was  the  sub- 
ject of  her  (Mrs.  2?'s)  engagement  ?  It  is  the  legal  liability  that 
is  the  test  of  the  proper  mutuality,  but  at  all  events,  equity  fol- 
lows the  law  in  the  case  of  a  married  woman's  agreement,  who 
has  no  special  disposing  pmcer  given  her  under  which  she  may 
make  it.  Besides,  too,  where  no  damages  are  recoverable  at 
law  on  a  contract,  equity  will  not  enforce  it — and  upon  that 
principle  alone,  then,  the  contract  could  not  be  enforced  in 
equity  against  Barney  and  wife.  2  Powell,  242,  252. 
•  It  may  be  said  that  this  latter  principle  is  too  generally  stat- 
ed— but  it  will  be  found  substantially  correct.  The  only  ex- 
ceptions to  the  rule,  in  its  literal  dcopc,  being  where  the  ina- 
bility to  recover  on  the  contract  at  law,  arises  from  want  of  form 
in  the  contract, — or  where  the  relation  between  the  party 
claiming  and  the  party  liable  makes  a  suit  technically  imprac- 
ticable, as  in  case  of  husband  and  wife.  2  Powell,  17. 

Here  there  is  a  manifest  want  of  the  mutuality  which  is  an  es- 
sential property  of  all  contracts  that  may  be  specifically  en- 
forced in  equity.  With  that,  too,  falls  all  idea  of  a  due  consi- 
deration for  the  agreement.  If  Mrs.  Barney  could  not  be  com- 
pelled to  execute  the  contract,  how  oppressively  unequal  is  Mrs. 
Coalers  situation,  if  she  is  to  be  held  liable-, — and  where  then  is 
VOL.  I.— 43 


338          CASES  IN  THE  COURT  OF  APPEALS 

Coale,  et  vx.  vs.  Barney,  et  ux.— 1829. 

the  consideration  for  her  being  so?  Mrs.  Barney  and  Mrs. 
Coale  held  together  the  estate  in  the  land,  equivalent  to  a  fee 
simple — and  without  Mrs.  Barney's  estate  being  brought  into 
action,  the  agreement  would  be  entirely  inoperative.  There  is 
no  ground  to  say,  and  can  be  no  pretence,  that  Mrs.  Barney 
had  any  peculiar  disposing  power  over  this  estate  beyond  that 
which  a  feme  covert  has  over  any  estate  which  she  may  have 
owned  before  marriage.  This  property  was  not  even  settled  to  her 
"separate  use,"  in  terms  or  effect ; — which  is  necessary  to  make 
it  equitably  her  separate  property — that  is :  so  as  to  give  her 
any  right  to  deal  with  it  as  if  she  were  a  feme  sole.  But  in|re- 
gard  to  real  estate  even  thus  made  separate  property,  a  power 
must  be  expressly  reserved  to  the  wife  of  disposing  of  it  as  a 
feme  so/e,  else  she  has  no  special  privilege  in  that  respect. 
Now  in  this  case,  Mrs.  Barney  had  before  her  marriage  a  trust 
estate  in  tail  general — of  which  she  had  no  more  right  to  dis- 
pose, except  by  deed  with  her  husband  and  upon  private  exam- 
ination, than  if  it  were  her  legal  as  well  as  equitable  estate.  It 
is  established  that  equity  recognises  no  distinction  between  trust 
and  legal  estates  in  land  in  reference  to  femes  corert  or  tenants 
in  tail,  or  in  any  respect  whatsoever  where  no  special  power  of 
appointing  is  given  by  the  assurance  to  the  wife,  or  there  be 
not  some  express  and  unequivocal  stipulation  to  make  the  case 
an  exception.  If  Mr.  Dugan  had  made  leases  under  the  agree- 
ment they  would  have  had  no  validity  as  to  Mrs.  Barneys  inter- 
est^ she  being  commuted  in  them  only  by  her  agreement.  If  such 
would  have  been  the  case  under  tJie  agreement,  is  there  any  ground 
for  complaint  that  Mr.  Dugan  did  not  proceed  to  make  these 
futile  leases  ?  and  inhere  then  is  the  mutuality  and  consideration 
in  reference  to  Mrs.  Coale?  And  it  may  be  asked,  if  the 
agreement  would  have  authorised  no  valid  leases  as  regards 
Mrs.  Barney's  interest,  how  can  the  decree  of  Chancery  pro- 
duce such  effect,  resting  as  it  does  on  the  efficacy  of  the  con- 
tract alone,  which,  in  the  particular  of  Mrs.  Barney's  interest, 
is  intrinsically  nugatory. 

3.  There  must  be  great  difficulty  in  framing  a  decree  to 
carry  this  agreement  into  effect.    Indeed  no  decree,  consistent- 


OF  MARYLAND.  339 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


ly  with  the  agreement,  can  pass,  that  shall  be  absolutely  com- 
pulsive against  Mrs,  Coalers  interest,  or  paramount  to  her  and 
her  husband's  private  judgment,  as  to  the  expediency  and 
acceptance  of  the  leases  that  may  be  proposed.  The  agree- 
ment refers  to  leases  that  reserves  "  such  rents  as  may  be  thought 
reasonable  by  the  parties  interested."  There  is  no  doubt  that 
Courts  of  Law  and  of  Equity  may  judge  of  the  reasonableness 
of  considerations — but  in  no  case  can  they  exercise  that  author- 
ity where  the  "  point  of  reasonableness  is  expressly  referred  to 
the  judgment  of  the  individual,  and  especially  the  interested  indi- 
vidual." If  the  stipulation  had  been  simply  that  "  reasonable 
rents"  should  be  reserved,  the  court  might,  no  doubt,  have 
determined  the  reasonableness.  But  that  is  not  the  stipulation 
in  this  instance. — And  here  the  court,  if  they  act  at  all  on  this 
agreement,  must  not  only  take  from  the  party  the  right  of  judg- 
ing the  reasonableness  of  the  rents,  but,  not  even  themselves  exer- 
cising it,  they  must  delegate  it  to  a  stranger — and  make  his  judg- 
ment the  imperative  rule  of  our  private  interests.  The  case,  in 
this  its  essential  aspect,  involves  grave  and  momentous  consid- 
erations which,  touching  the  high  and  sacred  rights  of  individ- 
ual property,  must  be  obvious  to  the  court,  and  will,  we  are 
assured,  induce  them  to  pause  on  the  question  of  their  jurisdic- 
tion— and  however  in  the  abstract  they  may  deem  that  the  par- 
ties ought  to  execute  the  agreement  specifically,  they  will,  and 
must,  consider  as  a  point  of  solemn  interest  how  far  they  can, 
within  their  legitimate  province,  devise  a  mode  of  adversely 
executing  it — and  how  far  they  rn^y  set  aside  the  right  of  the 
individual's  discretion,  which  is  reserved  in  the  contract  as 
part  of  that  disposing  power  of  her  property,  consecrated  by 
the  Constitution  and  the  first  principles  of  natural  justice. 

DORSEY,  J.  delivered  the  opinion  of  the  court.  Against  any 
decree  for  the  specific  execution  of  the  agreement  mentioned 
in  the  proceedings  in  this  cause,  many  distinct  and  independent 
grounds  have  been  relied  on,  by  the  solicitors  for  the  appellants. 
First,  it  was  contended  that  the  refusal  of  Hannah  Kitty  Chase, 
as  alleged  in  the  answer  of  Eliza  Coale,  to  perform  her  promise 


&40         CASES  IN  THE  COURT  OF  APPEALS 

Coale,  it  «x.  vs.  Barney,  et  ux. — 1829. 

of  uniting  for  the  purpose  of  docking  the  estate  tail;  (which 
promise,  it  is  said  was  the  main  inducement  with  Eliza  Coale, 
to  enter  into  the  contract,)  is  sufficient  to  induce  the  court  to 
withhold  that  relief  which  it  might  otherwise  have  been  dis- 
posed to  grant.  Without  deciding  the  question  so  warmly 
contested  in  the  argument;  whether  the  answer,  without  further 
proof,  can  sustain  a  defence  thus  founded  on  new,  and  as  it 
were  independent  matter,  (which  it  unquestionably  could  not, 
unaided  by  the  unsafe  and  unusually  comprehensive  interroga- 
tory in  the  conclusion  of  the  bill  of  complaint,)  it  is  sufficient  to 
say,  that  this  ground  of  resistance,  is  swept  from  the  appel- 
lants, by  the  decision  of  this  court  in  the  case  of  JVewf  on,  et  al. 
vs.  Griffith,  et  al.  1.  Harr.fy  Gill,  111,  which  determines  that 
estates  tail,  to  the  heirs  of  the  body  generally,  created  after 
the  first  of  January,  1788,  are,  by  the  operation  of  the  act  of 
descents,  converted  into  estates  in  fee  simple  absolute.  And 
this  case  cannot  evade  the  rule  thus  established  by  the  fact,  that 
in  Neicton  and  Griffith,  the  question  arose  on  the  legal  title  to 
land,  here  the  principle  is  to  be  applied  to  an  equitable  interest 
In  this  respect  equity  must  follow  the  law.  The  alleged 
promise  of  Hannah  Kitty  Chase,  to  unite  in  docking  the  entail, 
was  therefore  an  engagement  to  do  a  nugatory  act;  her  failure, 
to  comply  with  which,  ought  not  to  impair  the  rights  of  the 
appellees. 

It  can  hardly  be  necessary  to  notice  one  of  the  objections 
relied  on :  that  a  Court  of  Chancery  cannot  enforce-  the  contract 
against  Eliza  Coale,  because  it  was  wholly  voluntary  on  her 
part;  as  she  was  to  receive  no  consideration  for  her  agreement 
to  lease.  If  it  be  "no  consideration"  that  the  mother,  a  tenant 
for  life,  transfer  one  half  her  interest  to  her  daughter,  in  pro- 
perty to  which  the  daughter  was  entitled  in  remainder,  to 
obtain  the  daughter's  assent  to  such  an  improvement  of  the 
property,  as  would  (for  aught  that  appears  in  the  record) 
produce  inconvenience  or  loss  to  no  person  interested;  but  was 
indispensable  to  any  beneficial  enjoyment  of  it  by  the  mother; 
it  is  difficult  to  conceive,  what,  in  such  a  case,  would  be  re- 
quired, as  an  adequate  consideration. 


OF  MARYLAND.  341 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


We  are  told  by  the  appellants  solicitor,  that  the  great  depre- 
ciation in  real  property,  and  especially  in  the  city  of  Baltimore, 
is  matter  of  public  history,  of  which  the  court  must  judicially 
take  notice,  and  that,  although  a  regard  to  her  own  interest, 
might  prompt  Eliza  Coale  to  agree  to  lease  in  1813:  yet  the 
state  of  things  is  now  entirely  changed,  and  to  enforce  the 
agreement  at  this  time,  would  be  subjecting  her  to  great  hard- 
ship and  loss.  The  condition  of  this  country,  in  1813,  and  a  few 
years  afterwards,  was  an  accidental  and  unnatural  one;  the 
like  may  not  again  occur  for  centuries,  and  it  is  matter  of  sheer 
speculation  and  great  doubt,  whether  the  interest  of  all  con- 
cerned would  not  be  promoted  by  an  immediate  leasing  of  the 
property.  But  if  there  be  hardship  and  loss  in  the  case,  to 
whom  is  it  to  be  imputed?  To  Eliza  Coale,  whose  refusal  to 
perform  her  agreement,  prevented  the  execution  of  leases, 
when  rents  had  reached  their  most  unreasonable  height.  Had 
she  not  thus  refused,  from  that  transfer  by  her  mother,  which 
is  now  called  "  no  consideration,"  she  would  have  received  in 
rents,  up  to  this  time,  a  sum  of  money,  greater  in  amount,  than 
the  entire  value  of  her  present  interest  in  the  property:  and, 
independently  of  rents  received,  her  interest  in  the  property 
would  now  have  been/^our  times  as  valuable  as  it  is.  In  this 
she  is  not  the  only'  sufferer.  But  the  consequences  of  this 
controversy  are  n#w  visited,  in  a  much  higher  degree  upon  her 
sister,  Mrs.  Barney. 

It  was  also  urged,  that  by  another  rule  of  chancery  jurisdic- 
tion, the  appellees  were  prevented  from  obtaining  the  interpo- 
sition of  a  Court  of  Equity:  viz.  pat  where  a  party  had  a  com- 
plete remedy  at  law,  (as  might  here  be  had  by  a  writ  de  par- 
titione  facienda:)  or  where  nominal  damages  only  could  be 
recovered  at  law,  a  specific  execution  of  the  contract  will  never 
be  decreed.  In  answer  to  this  it  may  be  replied,  that  the  rule 
referred  to  has  no  application  to  the  case  before  us.  It  does  not 
appear  that  the  lot  of  ground  is  susceptible  of  a  division  into 
moieties;  and  if  it  were,  even  if  no  life  estate  intervened,  the 
estate  of  the  appellees  being  merely  equitable,  no  writ  of  parti- 
tion could  be  sustained  at  law.  That  if  it  could,  the  condition 


CASES  IN  THE  COURT  OF  APPEALS 

Coale,  tt  we.  vs.  Barney,  et  we. — 1829. 

of  the  parties,  under  such  a  proceeding,  would  be  different 
from  what  it  would  be  under  the  agreement.  If  partition  were 
made  at  law,  'tis  true,  that  Barney  and  w/e,  with  Hannah  Kitty 
C/uwe,  might  (as  is  stated)  lease  a  moiety  of  the  ground,  for  ninety- 
nine  years,  renewable  forever,  reserving  the  rent  to  Mary  Barney 
and  her  heirs;  but,  non  conslat,  that  she  would  be  willing  to  do 
so.  She  might  with  con/enience  assent  to  giving  her  daughters 
three-fourths  of  the  rents,  reserving  her  life  estate  in  the 
remaining  fourth:  yet  it  by  no  means  follows,  that  she  could 
conveniently  bestow  upon  one  daughter  the  entire  rents  of  one 
half  of  the  property;  whilst  the  other  half,  in  its  unimproved 
condition,  continued  on  her  hands  destitute  of  value.  That  so 
far  from  nominal  damages  only,  being  recoverable,  for  such  a 
violation  of  contract,  damages  to  the  full  extent  of  the  injury 
sustained  by  the  appellees,  would  certainly  be  recovered. 

Another  ground  more  strongly  relied  upon  against  the  appel- 
lees is,  that  they  have  slept  upon  their  rights,  in  such  a  way  as 
to  shew  that  the  contract  was  abandoned.  And  many  cases 
have  been  referred  to,  between  vendors  and  vendees  of  real 
estate,  in  which  a  Court  of  Chancery  has  denied  all  aid  to 
those,  who  have  not  been  vigilant  arid  active  in  asserting  their 
rights;  or,  in  the  language  of  some  of  the  cases,  who  have  not 
been  always  "  ready,  desirous,  prompt  a*id  eager,"  to  comply 
with  their  portion  of  the  contract,  and  to  enforce  on  the  other 
party,  a  like  compliance  with  its  stipulations.  A  contract  to 
lease,  say  they,  is  to  all  beneficial  purposes  a  sale;  its  effects 
being  the  same.  This  position  would  not  be  denied,  if  this 
controversy  were  between  a  lessor  and  lessee;  nor  would  the 
conclusiveness  of  the  authorities  cited  be  questioned,  if  this 
were  a  case  between  vendor  and  vendee.  The  justice,  the 
policy  of  this  rule  is  most  obvious;  the  grossest  frauds  and 
injustice  would  be  practised,  if  it  did  not  prevail.  But  for 
this,  stale  contracts  virtually  abandoned,  though  not  formally 
released;  in  case  of  a  sudden  rise  or  fall  in  the  value  of  the 
thing  contracted  for,  would  be  set  up,  and  the  party  com- 
plainant would  unfairly  gain  what  the  party  defendant  would 
unjustly  lose :  an  amount  precisely  equal,  to  the  appreciation 


OF  MARYLAND.  343 


Coale,  et  ux.  vs.  Barney,  et  ux. — 1829. 


or  depreciation  which  the  property  had  undergone ;  could 
that,  in  any  event,  be  the  predicament  of  the  parties  to  this 
suit?  Certainly  not.  As  regards  enhancement  or  diminution  of 
price,  their  interests  are  homogeneous,  inseparable;  profit  or 
loss  can  happen  to  neither,  without  a  proportionate  participation 
by  both.  Except  in  the  class  of  cases  adverted  to,  no  authority 
has  been  produced  to  shew  that  for  such  laches  and  under  such 
circumstances,  as  are  before  us,  relief  has  been  denied  under 
the  presumption  of  a  waiver  or  abandonment  of  the  contract. 
The  delay  of  the  appellees,  in  proceeding  to  assert  their  rights, 
is  considerable;  but  it  is  satisfactorily  accounted  for,  and  the 
weight  of  the  objection  entirely  fails  when  we  reflect  on  the 
near  relationship  of  the  parties  concerned,  and  look  to  the 
answer  of  Eliza  Coale,  and  see  what  efforts  were  made  to 
effect  an  amicable  arrangement  of  the  dispute,  and  that  the  door 
of  negociation  is  still  open,  and  that  this  implied  abandonment 
of  contract  is  no  where  insisted  on  in  the  answer. 

The  answer  does  not  state,  nor  has  any  proof  been  offered 
to  shew,  that  the  consummation  of  this  agreement  will  work 
any  particular  hardship  upon  the  appellants,  or  subject  them  to 
loss,  inconvenience  or  sacrifice  of  any  description.  Why  then, 
these  appellants  should  persist  in  a  course  of  conduct,  by  which 
they  have  already  lost  in  rents,  more  than  the  value  of  their 
whole  interest  in  the  property,  is  inconceivable.  The  hardship 
of  the  case  lies  altogether  on  the  other  side.  A  large  lot  of 
ground,  as  is  stated  in  the  agreement,  lying  "in  the  city  of 
Baltimore  "  "  unimproved :"  owned  by  a  mother  for  her  life, 
with  remainder  in  moieties  to  her' two  daughters  in  fee,  is  kept 
in  a  situation  to  be  of  no  annual  value  to  any  of  them,  by  the 
refusal  of  one  of  the  daughters  to  permit  its  improvement  in  the 
usual  and  only  practicable  mode;  when  by  complying  with  the 
solemn  contract  into  which  she  has  entered,  she  would  relieve 
the  wants  of  a  needy  sister  and  family,  for  whom  she  professes 
great  affection  and  concern;  and  be  herself  invested  with  the 
immediate  enjoyment  of  one  half  of  that,  to  which  she  was 
only  entitled  in  remainder;  and  this  too,  without  lessening  her 
interest  in  her  other  moiety. 


Ill          CASES  IN  THE  COURT  OF  APPEALS 

Coale,  et  ttx.  vs.  Barney,  et  ux. — 1829. 

The  last  ground,  upon  which  a  reversal  of  the  decree  was 
demanded,  was;  that  it  was  erroneous,  inasmuch  as  it  depart- 
ed from  the  sense  and  terms  of  the  agreement,  in  investing 
Dugan,  the  trustee,  with  the  privilege  of  judging  of  the  reason- 
ableness of  the  rent:  a  privilege  reserved  to  Eliza  Coez/e,  as  one 
of  the  persons  interested. 

That  this  court  have  the  power  to  grant  adequate  relief,  in  a 
case  like  the  present,  we  have  no  doubt.  Such  relief  can  only 
be  had,  by  providing  the  means  necessary  to  carry  into  effect, 
the  great  leading  object  of  the  parties  ;  the  leasing  the  proper- 
ty at  reasonable  rents:  and  in  doing  tbis,  it  is  our  duty  to  gratify 
the  minor  provisions  of  the  agreement,  as  far  as  it  can  be  done, 
consistently  with  the  accomplishment  of  the  grand  design.  To 
pass  a  decree,  as  is  suggested,  tbat  leases  should  be  made  at 
sucb  rents  as  Eliza  Coale  sbould  sanction,  would  be  doing  a 
nugatory  act.  She  has,  by  her  conduct  in  this  transaction, 
shewn  a  fixed  determination  that  no  leases  shall  be  made,  if  she 
can  prevent  them:  unless  at  a  sacrifice,  of  the  interests  of  her 
mother  and  sister,  which  she  is  not  warranted  in  demanding. 
She  has  therefore  forfeited  this  right,  by  acting,  and  shewing  a 
determination  to  act,  in  such  a  way,  as  to  render  her  exercise 
of  it  wholly  inconsistent  with  that  relief,  to  which  the  clear 
equities  of  the  appellees  entitle  them.  In  transfering  the  pow- 
er to  another  tribunal,  the  court  know  of  none  more  safe,  none 
so  convenient,  as  the  trustee  by  whom  the  leases  are  to  be 
made  and  executed.  So  much  of  the  Chancellor's  decree  there- 
fore, as  appoints  Cumberland  Dugan,  trustee  for  the  purpose  of 
executing  and  performing  the  agreement,  and  gives  costs  to  the 
appellees  should  be  affirmed  with  costs :  but  the  residue  of  said 
decree  must  be  reversed,  because  the  leases  are  not  decreed  to 
be  made  for  ninety-nine  years  with  liberty -of  renewal,  as  direct- 
ed by  said  agreement:  and  upon  a  ground  not  involving  the 
gist  of  the  controversy  between  the  parties,  and  therefore,  per- 
haps, not  noticed  in  the  argument :  but  which  obviously  appear- 
ing on  the  face  of  the  decree,  cannot  be  disregarded  by  this 
court.  One  fourth  part  of  the  rents  received  by  the  trustee, 
are  directed  to  be  paid  to  the  said  Eliza  Coak,  her  executors 


OF  MARYLAND.  345 


Coale,  etux.  vs.  Barney,  et  ux. — 1829. 


and  administrators ;  and  in  like  manner,  one  other  fourth  after  the 
death  of  the  said  Hannah  Kitty  Chase.  The  interest  of  Eliza 
Coale,  in  that  portion  of  the  rents,  to  her  payable,  under  the 
deed  from  John  E.  Howard  to  William  Paca,  is  real,  not  per- 
sonal estate;  and  as  such  cannot  be  limited  to  her  executors  and 
administrators  after  the  manner  of  personality.  Such  a  limita- 
tion is  contrary  to  the  rules  of  law,  and  by  it  nothing  passes  but 
a  life  estate  to  Eliza  Coale:  her  executors  or  administrators 
take  nothing.  Vide  6  Ba.  Mr.  p.  21 ,  tit.  Rent,  letter  H.  Tis  true, 
the  decree  of  the  Chancellor  has  literally  pursued  the  agree- 
ment; but  where  an  agreement  contains  provisions,  which,  by 
reason  of  some  technical  principle  of  law,  cannot  be  carried 
into  effect  according  to  its  literal  import,  it  is  the  duty  of  a  court 
of  equity  for  the  sake  of  the  intent,  to  give  it  that  construction 
which  the  rules  of  law  will  tolerate,  and  the  intention  of  the 
parties  to  be  collected  from  the  whole  instrument  will  justify. 
This  will  be  effected,  by  ordering  the  rents  to  be  paid  to  Eliza 
Coale  and  her  heirs  instead  of  executors  and  administrators.  As 
authorities  to  shew  that  courts  of  cecity  to  gratify  the  intent, 
construe  agreements  even  contrary  to  the  words,  we  would  refer 
to  1  Srid.  Ind.  430.  pi  6—7,  and  to  5  Ves,  399. 1  P.  Wms.  234. 

Although  the  appellees  do  not  appear  before  us,  seeking  any 
revision  or  alteration  of  the  decree  ;  yet  as  it  is  to  be  new-mod- 
eled to  secure  the  rights  of  the  appellants :  such  a  change  should 
be  made  in  it,  as  will  do  equal  justice  to  both  parties.  Instead 
therefore  of  Mary  Barney's  moiety  of  the  rents,  after  her  death, 
being  made  payable  to  her  children,  their  executors  and  adminis* 
trators,  as  directed  by  the  decree;  it  should  be  to  her  children 
and  their  heirs.  And  as  the  appellees  have  done  nothing,  which 
could  authorize  a  court  of  Chancery  to  transfer  to  Cumberland 
Dugan  the  right,  which  by  their  agreement  they  have  reserved 
to  themselves,  of  deciding  on  the  reasonableness  of  the  rents 
reserved  ;  the  trustee  should  be  enjoined  to  execute  leases  for 
such  rents,  as  he,  together  with  William  Barney  and  Mary  his 
wife,  and  Hannah  Kitty  Chase  should  think  reasonable. 

A  decree,  in  conformity  to  these  suggestions  will  be  signed  by 
the  court. 

VOL.  I.— 44 


31f»         CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  rs.  Edwards. — 1829. 

UNION  BANK  OF  MARYLAND  vs.  EDWARDS. — December,  1829. 

The  rule,  that  a  court  of  equity  will  sometimes  adopt  a  more  liberal  and  en- 
larged construction  than  prevails  at  law,  can  never  be  tolerated,  unless 
it  be  necessary  to  effectuate  the  motives  which  induced  a  contract. 

Relief,  by  the  doctrine  of  substitution,  is  never  extended  to  a  security,  but  up- 
on the  assumption  that  the  creditor's  debt  has  been,  or  is  to  be  fully  paid — 
that  his  further  detention  of  the  mortgaged  property,  is  against  equity  and 
good  conscience. 

So  where  a  mortgage  was  executed,  for  the  purpose  of  securing  the  payment 
of  all  and  every  sum  or  sums  of  money,  then  owing,  or  which  might  there- 
after be  due  and  owing,  from  the  mortgagor  to  the  mortgagee,  upon  any 
promissory  note,  or  notes  negotiated  or  to  be  negotiated  with  the  mortgagee, 
of  which  the  mortgagor  might  be  drawer,  or  endorser,  or  otherwise  how- 
ever, and  upon  sale  of  the  mortgaged  premises,  the  proceeds  being  insuffi- 
cient to  pay  a  note  of  the  mortgagor's  to  the  mortgagee,  for  which  the  lat- 
ter had  no  other  security  than  the  mortgaee  ;  it  was  held,  that  aji  accomo- 
dation  endorser  on  a  note  of  the  mortgagors,  discounted  by  the  mortgagee 
after  the  execution  of  the  mortgage  and  before  the  sale,  could  not  call  upon 
a  court  of  equity  to  distribute  the  fund  above  mentioned,  rateably,  in  pay- 
ment of  both  notes. 

APPEAL  from  the  Court  of  Chancery.  In  this  case  a  bill 
was  filed  on  the  18th  of  December,  1822,  by  the  appellantsy 
against  William  Stansbury,  for  the  sale  of  certain  lots  of  ground 
in  the  city  of  Baltimore,  mortgaged  by  him  to  them,  on  the 
27th  of  July,  1822,  for  the  purpose  of  securing  the  payment  of 
all  and  every  sum  or  sums  of  money  then  owing,  or  which 
might  thereafter  be  due  or  owing  from  Stansbury  to  the  Union 
Hank,  upon  any  promissory  note  or  notes  negotiated,  or  to  be 
negotiated  at  the  said  bank,  which  was  or  might  be  drawn  or 
endorsed,  or  otherwise  however;  with  a  proviso,  that  if  Stans- 
bury should,  when  thereunto  required,  pay  unto  the  said  bank, 
all  and  every,  the  sum  or  sums  of  money  then  owing,  or  which 
might  thereafter  become  due  or  owing  from  him  to  the  said 
bank,  either  upon  any  promissory  note  or  notes  that  had  already 
been,  or  which  might  thereafter  be  negotiated  at  the  said  bank, 
of  which  he  might  be  drawer,  or  endorser,  or  otherwise  how- 
soever, then  the  said  mortgage  was  to  be  void.  Such  proceed- 
5  ngs  were  had  upon  the  said  bill,  on  coming  in  of  the  answer, 
admitting  the  facts  stated  in  the  bill,  and  consenting  to  a  decree 


OF  MARYLAND.  347 


Union  Bank  of  Maryland  vs.  Edwards. — 1829. 


for  the  sale  of  the  mortgaged  premises,  and  that  out  of  the  pro- 
ceeds of  sale,  the  sum  of  $20,000  due  to  the  complainants,  with 
interest  thereon,  should  be  paid;  that  at  December  term,  1822, 
a  sale  was  decreed  ;  provided  that  not  more  than  $1 9,258  be 
paid  to  the  complainants.  The  property  was  sold  by  the  trus- 
tee, appointed  for  that  purpose,  to  the  amount  of  $12,005  33, 
and  the  sales  were  ratified. 

On  the  10th  of  December,  1824,  and  also  on  the  21st  of 
February,  1826,  Elizabeth  Edwards  (the  now  appellee)  filed 
her  petitions.  The  first  petition  stated,  that  in  the  year  1822, 
she  had  loaned  her  name  for  a  small  amount  to  William  Stans- 
bury,  and  had  either  drawn  or  endorsed  notes  for  his  use  and 
accommodation  accordingly,  which  notes  had  been  and  were 
discounted  by  the  Union  Bank.  That  subsequently  thereto, 
Stansbury  wishing  to  obtain  further  discounts  at  said  bank,  and 
in  order  to  secure  the  payment  of  all  and  every  sum  or  sums  of 
money,  then  due,  or  which  might  thereafter  become  due,  and 
prevent  any  loss  whatever,  on  the  notes  so  loaned  or  endorsed 
by  her,  or  by  other  persons,  or  which  might  thereafter  be  loaned 
by  her  or  others,  and  discounted  at  said  bank,  did  on  the  27th 
of  July,  1822,  execute  a  deed  of  conveyance  by  way  of  mort- 
gage to  the  said  bank,  whereby  he  conveyed  to  them  his  real 
estate,  or  the  greater  part  thereof,  which  was  large,  and  con- 
sisted of  a  variety  or  number  of  lots  and  improvements,  situate 
in  the  city  of  Baltimore.  That  the  said  property  was  intend- 
ed and  expressed  in  the  said  deed  to  be  conveyed  for  the  pur- 
pose of  securing  the  payment  of  all  and  every  sum  or  sums  of 
money,  then  due  and  owing,  or  wKich  might  thereafter  become 
due  or  owing,  from  Stansbury  to  the  said  bank  upon  any  pro- 
missory note  or  notes  negotiated,  or  to  be  negotiated  at  the  said 
bank,  of  which  Stansbury  might  be  the  drawer  or  the  en- 
dorser. That  the  understanding  and  intention  of  all  the  parties, 
being,  that  the  said  property  should  be  responsible  for  all  notes 
negotiated  or  to  be  negotiated,  at  the  said  bank  for  Stansbury, 
and  the  petitioner  believing  the  said  property  to  be  valuable  at 
the  time,  and  sufficient  to  secure  a  large  amount ;  and  believing 
further,  than  in  the  event  of  a  failure  of  Stansbury  at  any  time  to 
pay  such  notes,  the  said  property  would  be  sold,  and  the  peti- 


348         CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  vs.  Edwards. — 1829. 

tioner  and  the  other  drawers  and  endorsers  made  responsible 
only  for  any  deficiency  (if  any  existed,)  or  that  upon  their 
paying  such  notes,  the  same  could  be  assigned  to  them,  she  did 
not  hesitate  from  time  to  time,  to  renew  the  notes  which  she  had 
drawn  or  endorsed  for  Stansbury  before  said  deed  was  execu- 
ted, and  also  draw  and  endorse  other  notes  in  his  favor,  for  his 
accommodation,  which  were  discounted  or  continued  at  the  said 
bank.  The  petition  then  stated  the  filing  the  bill  by  the  bank 
and  the  sale  of  the  property,  &c.  Prayer,  that  the  proceeds  of 
the  sale  may  be  applied  to  payment  pro  rata  of  the  said  notes 
held  by  the  bank,  and  drawn  and  endorsed  by  Stansbury,  &c. 
The  last  petition  after  referring  to  the  proceedings  which  had 
taken  place  in  this  case,  stated,  that  the  said  mortgage  from 
Stansbury  to  the  complainants,  was  designed  and  intended  by 
the  parties  thereto,  to  secure  all  the  notes  discounted  or  nego- 
tiated at  the  Union  Bank,  for  Stansbury's  use,  or  in  the  event 
of  its  falling  short  of  the  whole  amount,  then  upon  a  sale  becom- 
ing necessary,  that  the  proceeds  should  be  applied  rateably  to 
the  discharge  of  said  notes.  That  the  complainants  now  seek 
to  apply  the  whole  proceeds  to  the  extinguishment  of  a  par- 
ticular debt,  alleged  by  them  to  be  due  and  owing  to  them 
from  Stansbury;  although  the  petitioner  conceives  the  same  is 
not  embraced  by  the  mortgage,  and  forms  no  part  of  the  nego- 
tiated notes  discounted  for  his  use,  'and  which  alone  were  in- 
tended to  be  secured  by  the  mortgage — Prayer  that  the  audi- 
tor be  directed  to  state  an  account  excluding  the  present  alleg- 
ed claim  of  the  complainants,  and  distributing  and  applying  the 
proceeds  to  the  payment  of  the  notes  negotiated  by  Stansbury 
at  the  said  bank,  and  there  discounted  for  his  use  and  accommo- 
dation; and  another  account  whereby  the  same  funds  shall  be 
distributed  and  applied  rateably  to  the  alleged  claim  of  the 
complainants,  and  to  the  notes  negotiated  and  discounted  for 
Stansbury;  and  that  the  complainants  produce  to  the  auditor  the 
several  original  promissory  notes  held  by  them  and  discounted 
for  the  use  of  Stansbury,  &c. 

To  this  petition  the  complainants  answered,  stating  among 
other  things,  that  in  the  year  1822,  and  previous  thereto,  Stans* 


OF  MARYLAND.  349 


Union  Bank  of  Maryland  vs.  Edwards. — 1829. 


bury  was  indebted  to  them  to  the  amount  of  $15,000  and  up- 
wards, upon  certain  promissory  notes  discounted  by  them  for 
the  use  and  benefit  of  Stansbury;  and  that  on  some  of  these 
notes  made  in  the  fall  of  the  year  1822,  the  said  Elizabeth  Ed~ 
wan/s's  name  appeared  as  drawer  or  endorser;  that  on  the  27th 
of  July,  1822,  Stansbury  executed  the  deed  of  mortgage,  &c. 
That  after  the  execution  of  the  said  mortgage,  Stansbury  con- 
tinued to  present  paper  whereon  he  was  drawer  or  endorser, 
for  various  amounts  and  at  various  times,  with  intent  to  have  the 
same  discounted  for  his  use  and  benefit,  which  said  paper  was 
from  time  to  time  discounted,  and  portions  thereof  were  also 
from  time  to  time  renewed  by  other  notes.  That  these  negotia- 
tions were  continued  until  1824,  and  in  June  and  July  of  that 
year,  Stansbury  then  stood  indebted  upon  notes  whereof  he  was 
drawer  or  endorser,  viz.  a  note  for  $8700,  drawn  on  the  17th 
June,  1824,  by  Stansbury  in  favor  of  J.  P.  cashier,  at  sixty  days. 
A  note  drawn  on  the  12th  of  July,  1824,  by  Stansbury  in  favor 
of  Elizabeth  Edwards  for  $600,  and  endorsed  by  her,  and 
Wilmer  and  Palmer.  Three  notes,  the  first  dated  the  8th  of 
July,  1824,  for  $1800;  the  second  dated  the  14th  June,  for 
$1200,  and  the  third  dated  the  19th  of  July  for  $700.  All 
three  drawn  by  Elizabeth  Edwards  in  favor  of  Stansbury, 
and  by  him  endorsed;  and  Stansbury,  was  also  indebted  to  the 
said  bank  on  two  notes,  the  first  drawn  by  JV*.  M.  Bosky  in 
favor  of  Stansbury  for  $300,  dated  the  17th  of  June,  1824,  and 
the  other  drawn  by  J.  Medtart  in  favour  of  Stansbury  for  $200, 
dated  the  17th  of  July,  1824,  both/of  which  notes  were  subse- 
quently paid  by  their  respective  drawers;  but  the  other  notes 
before  mentioned  never  were  paid  to  the  bank,  and  still  remain 
due  and  unpaid.  That  soon  after  the  execution  of  the  deed  of 
mortgage,  the  respondent  filed  their  bill  for  the  foreclosure  there- 
of, the  same  having  become  forfeit,  and  a  decree  by  consent 
was  accordingly  obtained  for  a  sale,  &c.  That  the  property 
was  sold  to  the  amount  of  $12,005  33.  That  the  said  sum  was 
answerable  for  the  payment  of  certain  liens  there  out,  which 
were  to  be  paid  before  any  portion  of  the  above  mentioned 
notes  were  entitled  to  be  liquidated;  which  said  liens  con- 


350          CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  rs.  Edwards. — 1829. 

sisted  of,  &c.  which  said  liens  thus  reduced  the  amount  subject 
to  the  payment  of  the  said  notes  to  a  sum  less  than  $8000. 
That  the  sum  thus  left  is  not  sufficient  to  pay  the  first  note 
due  by  Stansbury  for  $8700.  They  utterly  deny  that  there 
AV.IS  any  understanding  or  agreement  between  them  and  Eliza- 
beth Edwards  or  Stansbury,  that  the  mortgaged  premises  when 
sold  should  be  applied  to  pay  the  notes  whereof  Mrs.  Edwards 
was  either  drawer  or  endorser,  or  that  any  pro  rota  distribution 
of  the  fund  should  be  made  in  her  favor,  or  that  there  was  any 
agreement  or  understanding  between  the  said  parties,  other 
than  that  recited  in  the  said  deed  of  mortgage.  They  aver  that 
in  granting  the  discounts  as  aforesaid  to  Stansbury,  they  were 
regulated  by  their  opinion  of  the  solvency  of  Mrs.  Edwards,  in 
determining  whether  they  would  grant  discounts  with  her  name; 
and  took  her  name  as  a  further  and  additional  security  for  the 
payment  of  the  notes  by  Stansbury,  lest  the  security  of  the  mort- 
gaged premises  should  be,  as  it  turned  out  to  be,  insufficient  for 
their  indemnification  against  loss;  and  they  would  not  have  lent 
their  money  upon  the  security  of  Mrs.  Edwards's  name,  if  they 
had  been  apprized  that  she  could  or  would  claim  any  benefit 
from  the  security  of  the  mortgaged  premises,  as  she  now  pre- 
tends to  do  by  her  petition.  They  are  advised  that  Mrs.  Ed- 
wards has  no  right  in  equity  or  in  law  to  claim  a  payment  of  the 
notes  whereon  her  name  appears,  until  all  the  liabilities  which 
were  intended  to  be  secured  by  the  said  mortgage  be  first  sa- 
tisfied. Prayer  that  the  petition  be  dismissed,  and  the  respon- 
dents be  permitted  to  take  such  benefit  from  the  mortgage  as 
they  are  entitled  in  equity  and  conscience  to  demand. 

Affidavits  were  filed  by  Mrs.  Edwards ;  one  of  them,  that  of 
William  Stansbury,  who  made  oath  that  Mrs.  Edwards  became 
drawer  or  endorser  on  notes  discounted  at  the  Union  Sank  for 
the  accommodation  of  the  deponent,  some  time  in  August,  1822; 
that  her  name  was  substituted  upon  said  notes  for  R.  Middle- 
ton's,  who  was  considered  as  in  bad  credit;  and  that  Mrs. 
Edwards  consented  to  lend  her  name  on  said  notes  under  the 
express  assurance  that  the  payment  of  them  was  fully  secured 
by  the  mortgage  deed  of  a  large  amount  of  property  to  the 


OF  MARYLAND.  351 


Union  Bank  of  Maryland  rs.  Edwards. — 1829, 


said  bank,  which  he  believed  would  have  been  amply  suffi- 
cient to  have  secured  the  payment  of  all  the  notes  at  the  said 
bank,  had  it  not  been  disposed  of  at  an  immense  sacrifice. 

BLAND,  Chancellor,  (April  28, 1826.)  The  matter  now  presen- 
ted to  the  consideration  of  the  court,  arises  out  of  the  petition  of 
Elizabeth  Edwards  and  the  answer  thereto  of  the  bank.  The 
counsel  on  both  sides  have  been  heard,  and  the  proceedings- 
considered. 

It  appears,  that  Stansbury,  the  defendant,  with  a  view  to  ob- 
tain such  loans  of  money  as  he  might  want,  on  the  27th  of  July, 
1822,  mortgaged  the  whole  of  a  considerable  proportion  of  hi& 
property  to  the  Union  Bank,  the  plaintiff;  which,  it  was  stip- 
ulated should  stand  as  a  security  for  all  and  every  sum  or  sums 
of  money  then  owing,  or  which  might  thereafter  become  due  and 
owing  from  Stansbury  to  the  bank,  either  upon  any  pro- 
missory note  or  notes,  that  had  then  been  or  might  thereafter  be 
negotiated  at  the  bank,  of  which  he  might  be  drawer  or  endor- 
ser or  otherwise  howsoever.  At  the  time  this  deed  was  madey 
Stansbury,  it  is  alleged,  was  indebted  to  the  bank  to  the 
amount  of  $15,000  and  upwards,  by  notes,  of  which  he  was- 
either  drawer  or  endorser;  and  some  of  which  were  endorsed 
by  Elizabeth  Edwards,  the  petitioner.  After  which,  on  the* 
18th  of  December,  1822,  the  bank  filed  their  bill  here  to  haver 
the  mortgage  foreclosed;  and  on  the  27th  of  the  same  month,, 
by  consent,  obtained  a  decree  for  a  sale;  and,  a  sale  has  been 
made  accordingly.  But  notwithstanding  this  judicial  proceed- 
ing, the  negotiations  between  these  parties  were,  from  time  to 
time,  renewed  and  continued  down  to  the  month  of  July,  1824 
when  it  appears,  that  Stansbury  stood  indebted  to  the  bank  to 
a  considerable  amount  by  promissory  notes;  one  of  which,  datedl 
ion  the  17th  of  June,  1824,  for  88700,  was  given  by  Stansbury 
directly  to  the  bank  itself  without  any  endorser;  all  the  other 
notes  were  endorsed  or  drawn  by  other  persons — the  greater 
amount  by  Elizabeth  Edwards,  the  petitioner. 

The  case  is  somewhat  complex;  but  it  appears  to  me,  to  be 
resolvable  into  this :     The  Union  Bank  is  the  creditor  of  Stans- 


352          CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  rs.  Edwards — 1829. 

bury  to  a  considerable  amount,  for  the  payment  of  the  whole  of 
which  it  holds  Q  lien  upon  the  mortgaged  property,  and  for  a 
part  it  holds  the  additional  personal  security  of  Edwards^  en- 
dorsements of  Stunsbury^s  notes.  This  relationship  of  prin- 
cipal and  debtor,  and  of  a  surety  to  a  creditor  who  held  a  pledge 
of  property  as  an  additional  security,  existed,  as  relates  to  Ed~ 
wards,  on  the  execution  of  the  mortgage  deed,  and  has  been, 
from  time  to  time,  revived,  renewed,  and  continued  ever  since. 
I  shall,  therefore,  consider  these  parties  as  now  standing  in  this 
predicament  and  relation  to  each  other. 

The  petitioner  insists  on  having  the  proceeds  of  the  mortga- 
ged property,  applied  to  the  payment  of  the  aggregate  amount 
of  debts  due  by  Stansbury  to  the  bank,  as  far  as  they  will  go, 
without  distinction  or  discrimination.  On  the  other  hand,  the 
bank  contends  for  the  right  to  apply  those  proceeds  exclusively 
to  the  payment  of  Stansbury's  note  for  $8,700,  on  which  they 
have  no  endorser  or  other  personal  surety  than  Stansbury  him- 
self. 

The  relationship  of  creditor,  principal  debtor,  and  surety,  lays 
the  creditor  under  certain  obligations,  which  he  is  not  allowed  by 
either  a  court  of  law  or  equity  to  violate  with  impunity.  Al- 
though, as  between  obligee  and  surety,  there  is  no  obligation  of 
active  diligence  against  the  principal ;  and  delay,  unaccompani- 
ed by  fraud,  or  a  positive  agreement  with  the  principal,  will  not 
operate  as  a  release  of  the  surety,  "yet,  if  a  creditor  undertakes, 
by  express  stipulation,  to  extend  the  time  of  payment,  or  to 
allow  the  principal  to  pay  by  instalment ;  or  if  the  obligee  be- 
gins to  sue  the  principal  and  afterwards  gives  time ;  or  if  the 
creditor  in  any  manner  waives,  or  postpones  his  right  to  sue  im- 
mediately the  debt  becomes  due,  the  surety  will  be  discharged, 
as  well  at  law,  as  in  equity.  Because,  immediately,  on  the  next 
day  after  the  debt  becomes  due,  the  surety  has  a  right  to  file 
his  bill  here,  to  force  the  creditor  to  bring  suit-,  and,  therefore, 
an  express  and  stipulated  indulgence  given  by  the  creditor  to 
his  principal  debtor  is  fatal  to  his  claim  against  the  surety,  since 
it  deprives  him  of  this  equity. 


OF  MARYLAND.  353 


Union  Bank  of  Maryland  vs.  Edwards. — 1829. 


The  taking  of  a  mortgage  by  the  creditor  from  the  principal 
debtor,  is  calculated  to  inspire  the  surety  with  confidence. 
He  is  thereby  induced  to  relax  in  his  vigilance ;  and  to  for- 
bear obtaining  a  sufficient  guaranty  as  an  indemnity  against  his 
eventual  liability.  Such  a  mortgage  becomes  a  trust  for  the  di- 
rect interest  of  the  creditor,  and  also,  for  the  direct  benefit  of 
the  surety.  From  such  circumstances,  therefore,  an  equity 
arises,  that  the  creditor  shall  not  invalidate,  or  by  any  wilful  act 
vitiate  his  mortgage  security  to  the  prejudice  of  the  surety.  And 
also,  because  the  surety,  should  he  be  compelled  to  pay  the 
debt,  has  a  right  to  call  upon  the  creditor  to  be  put  into  his 
place,  in  all  respects ;  since,  in  equity,  or  such  an  event,  he  be- 
comes entitled  to  be  considered  as  the  substitute  of  the  creditor; 
and  to  have  the  mortgage,  and  all  other  securities  given  by  the 
principal  debtor,  assigned  to  him.  And  this  right  of  the  surety 
stands  not  upon  any  thing  expressed  in  the  contract,  but  is  based 
upon  the  principles  of  natural  justice. 

The  principles  in  relation  to  double  securities  and  marshaling 
assets  do  not  strictly  apply ;  but,  they  have  a  bearing  which 
fortifies  and  illustrates  the  equity  by  which  this  case  is  govern- 
ed. In  those  cases,  where  a  creditor  has  two  funds,  he  shall 
take  his  satisfaction  out  of  that  fund  upon  which  another  credi- 
tor has  no  lien,  or  which  he  cannot  reach.  This,  however,  is 
done  for  the  benefit  of  creditors,  not  of  the  debtor,  though  it  ari- 
ses out  of  his  acts,  and  he  does  receive  benefit  from  it.  This 
doctrine,  in  relation  to  double  securities,  and  marshaling  assets, 
has  been  long  established  here;  and/ is,  I  am  inclined  to  believe, 
carried  farther  than  in  England.  (  To  illustrate  this  matter,  let 
us  suppose,  in  this  instance,  that  Elizabeth  Edwards  was  dead, 
and  that  the  proceeds  of  her  real  estate  were  now  here  to  be 
distributed  among  her  creditors.  If  the  bank  were  to  present 
their  claims,  as  founded  on  these  notes  of  Edwards,  endorsed  as 
surety  for  Stansbury,  the  court  would  require  them  to  show, 
that  Stansbury,  the  principal  debtor,  was  insolvent,  before  they 
would  be  allowed  to  come  in  for  a  distributive  share  of  Edwards's 
assets.  This  marshaling  of  the  assets  and  securities  would  be 
made  only,  at  the  instance,  and  for  the  benefit  of  Edwards's  cre- 
VOL,  I.— 45 


3W          CASES  IN  THE  COURT  OF  APPEALS 

I  Hiou  Bank  of  Maryland  vs.  Edwards — 1821). 

ditors;   yet  her  representatives  might  also  receive  material 
benefit. 

But,  in  this  case  it  is  a  surety,  not  a  creditor,  who  asks  to 
have  the  burthen  of  this  claim  shifted  over  from  one  point  of 
pressure  to  another.  It  is  the  surety  who  wishes  the  creditor  to 
be  directed  to  take  his  satisfaction  from  his  principal  debtor,  so 
far  as  he  can  obtain  it,  before  he  is  allowed  to  demand  payment 
of  the  surety.  It  is  believed,  that  a  Court  of  Equity  has  never, 
in  any  case,  gone  so  far,  at  the  instance  of  a  surety,  as  to  turn  a 
creditor  away  from  one  fund  upon  which,  according  to  the  ex- 
press terms  of  the  contract,  he  had  a  fair  and  an  unquestionable 
claim,  to  seek  payment  from  another,  as  he  could,  and  which 
might,  or  might  not,  be  made  effectual.  Nothing  can  be  more 
delicate  than  the  interference,  either  of  the  Legislature  or  of  the 
Court  of  Chancery,  taking  away  those  stipulated  rights  which 
the  debtor  has  thought  fit  to  grant.  Such  an  arrangement,  or 
marshaling  of  securities,  it  seems  to  me,  would  be  pressing  too 
closely  upon  that  constitutional  restriction,  which  forbids  even 
our  Legislature  from  impairing  the  obligation^  contracts.  The 
surety  is  the  guarantee,  and  it  is  his  business  to  see,  whether  the 
principal  pays,  and  not  that  of  the  creditor. 

But,  where  nothing  is  hazarded,  and  every  thing  may  be  at- 
tained which  was  contemplated  by  the  parties,  when  they  enter- 
ed into  the  contract ;  in  such  case  a  court  of  equity  may  fairly, 
and  safely  interpose  ;  because,  by  doing  so,  it  does  not,  in  any 
sense,  impair  the  obligation  of  the  contract ;  but  a  new  and 
equitable  direction  is  given  to  it,  for  the  prevention  of  wrong, 
and  for  the  purpose  of  doing  more  ample  justice  to  all.  And, 
therefore,  where  it  is  shown,  that  the  creditor  has  the  clear 
means  of  making  his  demand  effectual,  and  there  is  no  risk, 
delay  or  expense;  as  when  the  money  was  in  the  next  ro&m,  or 
an  ample  indemnification  against  the  consequences  of  risk, 
delay  and  expense,  the  surety  has  a  right  to  call  upon  the  cre- 
ditor to  do  the  most  he  can  for  his  benefit.  As  if  the  surety  depo- 
sits the  money,  and  agrees  that  the  creditor  shall  be  at  no  ex- 
pense, he  may  compel  the  creditor  to  prove  under  a  commission 
of  bankruptcy,  and  give  the  benefit  of  the  assignment  to  the  sure- 


OF  MARYLAND.  355 


Union  Bank  of  Maryland  t?s.  Edwards — 1829. 


ty  in  that  way.  Other  examples  might  be  adduced  equally  strong 
to  show,  that  a  creditor  may,  under  circumstances,  be  called  on 
to  act  for  the  benefit  of  the  surety.  In  those  cases,  it  is  not  by 
force  of  the  contract;  but  of  that  equity  upon  which  it  is  con- 
sidered against  conscience,  that  the  holder  of  the  securities 
should  use  them  to  the  prejudice  of  the  surety,  where  he  himself 
can  be  exposed  to  no  risk  whatever. 

Here  it  is  clear,  that  the  mortgage  comprehends  all  the  debts 
due  by  notes  from  Stansbury  to  the  bank,  as  well  those  for 
which  Edwards,  as  drawer  or  endorser,  was  surety,  as  all 
others.  And  it  is  certain,  that  the  bank  can  run  no  risk  in  doing 
what  is  now  asked ;  because  the  proceeds  of  the  mortgaged 
property,  are  now  in  the  hands  of  this  court,  or  of  the  trustee, 
its  officer,  ready  to  be  delivered  over.  To  the  extent  of  these 
proceeds,  therefore,  this  creditor  not  only  has  the  clear  means, 
but  the  absolute  certainty  of  rendering  his  demand  effectual 
against  his  principal  debtor.  As  the  bank  would  not  have  been 
permitted  to  invalidate  or  enfeeble  its  mortgage  to  the  prejudice 
of  Edwards,  so  neither  can  they  be  allowed  to  shift  and  misap- 
ply its  benefits  to  her  disadvantage.  If  the  bank  chose  to  trust 
Stansbury  on  his  note  and  mortgage  alone,  and  they  should  sus- 
tain any  loss,  they  have  only  themselves  to  blame.  It  is  enough 
for  Edwards,  and  sufficiently  maintains  her  equity,  that  the 
bank  cannot  lose  any  portion  of  the  debt  for  which  she  is 
surety,  by  having  that  pledged  property  first  applied  towards  its 
satisfaction,  since  it  clearly  formed  a  part  of  that  aggregate 
amount  of  debt,  intended  to  be  secured  by  the  mortgage. 

Upon  the  whole,  it  is  my  opinion,  that  the  proceeds  of  this 
mortaged  property,  or  so  much  thereof  as  may  remain  after  all 
prior  liens  upon  it  have  been  fully  paid,  must  be  applied  to  the 
satisfaction  of  the  total  or  aggregate  amount  of  the  sums  of  mo- 
ney due  on  notes  by  Stansbury  to  the  bank ;  and  that  Edwards, 
as  surety,  is  entitled  to  the  equitable  benefit  of  this  application 
of  these  proceeds ;  and  that  she  is  liable  to  the  bank  for  the  ba- 
lance and  no  more.  As  for  example,  if  the  bank  should  obtain 
from  these  proceeds  only  twenty-five  cents  in  the  dollar  with 
interest,  Edwards  must  be  held  liable  for  seventy-five  cents  in 


366         CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  vs.  Edwards — 1829. 

the  dollar  with  interest,  to  the  amount  of  which  she  was  surety 
and  no  more. 

Wherefore  it  is  ordered,  that  this  case  be,  and  is  hereby 
again  referred  to  the  auditor,  with  directions  to  state  an  account 
or  accounts  according  to  the  principles  that  have  been  thus  ex- 
plained and  determined. 

The  complainants  afterwards  on  the  17th  of  July,  1826,  pe- 
titioned the  Chancellor  for  leave  to  'amend  their  answer  to  the 
petition  of  Elizabeth  Edwards  for  the  purpose  of  introducing 
therein  a  variety  of  facts  which  were  unknown  to  the  Chancellor 
at  the  time  of  the  hearing,  and  that  a  re-hearing  may  be  had, 
&c.  Accompanying  the  petition  were  several  affidavits,  with  a 
list  of  the  notes  drawn  by  the  said  Edwards,  &c. 

BLAND,  Chancellor,  (July  19th,  1826)  after  hearing  the  soli- 
citor of  the  petitioners  on  the  foregoing  petition,  and  consider- 
ing the  same,  together  with  the  proceedings. —  Ordered,  that  the 
said  petition  be  dismissed  with  costs.  From  which  several  or- 
ders in  the  premises  the  complainants  appealed  to  this  court. 

The  auditor  afterwards,  on  the  1st  of  May,  1827,  reported 
an  account,  and  thereby  applied  the  nett  proceeds  of  the  sales, 
to  the  payment  of  the  trustee's  commission,  costs  of  suit,  ground 
rents  and  taxes,  the  prior  mortgage  to  Richard  Sommerville,  and 
dividends  on  the  amounts  of  the  notes  held  by  the  bank. 

The  counsel  of  the  parties  entered  into  an  agreement,  after 
the  appeal  was  depending  in  this  court,  "  that  the  affidavits  filed 
by  the  appellee  in  support  of  her  petition,  and  those  filed  by  the 
appellants  with  the  petition  of  the  17th  of  July,  1826,  be  receiv- 
ed as  evidence  in  the  cause,  as  if  the  same  had  been  duly  taken 
before  the  hearing  of  the  same.  And  also  the  auditor's  last 
report,  be  confirmed  by  the  Chancellor,  and  be  admitted  as  part 
of  the  record  in  this  cause,  as  if  the  same  had  been  done  before 
the  appeal  was  entered  ;  and  that  all  other  audits  be  dispensed 
with." 

BLAND,  Chancellor,  (25th  June,  1828.)  On  consideration  of 
the  agreement  this  day  filed, — Ordered,  that  the  statement  of  the 


OF  MARYLAND.  357 


Union  Bank  of  Maryland  vs.  Edwards — 1829. 


auditor  be  ratified  and  confirmed ;  and  the  trustee  directed 
to  apply  the  proceeds  accordingly,  with  a  due  proportion  of  in- 
terest that  has  been  or  may  be  received. 

The  cause  was  argued  in  part  at  June  term,  and  concluded  at 
the  present  term,  1828,  before  BUCHANAN,  Ch.  J.  and  ARCHER 
and  DORSEY,  J. 

Kennedy  for  the  appellants  contended,  that  the  Chancellor 
erred  in  his  opinion  as  expressed  in  his  orders  in  the  cause,  for 
the  following  reasons : 

1.  That  Mrs.  Edwards,  who  was  the  drawer  of  certain  notes, 
which  were  discounted  by  the  appellants  for  the  use  and  benefit 
of  William  Stansbury,  was  not  entitled  to  have  the  same  admit- 
ted to  a  rateable  dividend  upon  the  mortgage  fund,  until  the 
appellants   were   satisfied   in  their  principal   debt  of  $8700 
against  Stansbury. 

2.  That  there  was  error  in  directing  the  account  to  be  so 
stated,  as  to  include  the  notes  of  Mrs.  Edwards,  the  fund  not 
being  sufficient  to  pay  the  note  of  Stansbury,  which  had  been 
discounted  upon  the  security  of  the  mortgaged  premises  alone. 

3.  That  the  Chancellor  erred  in  supposing,  against  the  facts 
of  the  case,  that  the  notes  of  Mrs.  Edwards  were  in  existence 
•  t  the  date  of  the  mortgage,  and  designed  to  be  secured  by  it 

4.  That  he  also  erred  in  the  opinion,  that  the  appellants  were 
guilty  of  any  laches  in  availing  themselves  of  the  mortgage  fund, 
to  the  prejudice  of  the  appellee.    / 

1.  Parol  evidence  is  admissible  to  explain  an  equitable  mort- 
gage; also,  that  an  absolute  deed  was  intended  as  a  mortgage 
Ex  parte  Langston,  17  Fes.  227.  3  Stark.  Evid.  1052, 

2.  Mrs.  Edwards  has  assumed  the  privilege  of  a  surety.  She 
cannot  stand  as  a  surety.     He  adverted  to  the  case  of  Clapper 
vs.    Union  Bank  of  Maryland,  7  Harr.  $  Johns.  92.     When, 
the  mortgage  debt  is  paid,  then  the  surety  is  to  stand   in   the 
place  of  the  creditor.    Mr*.  Edwards  might  come  in  for  the  sur- 
plus.    Hays  V8.  Ward,  4  Johns.  Ch.  Rep.  123.    Cheesebrough* 
vs.  Millard,  I  Johns.  Ch.  Rep.  409.  Stevens  vs.  Cooper,  Ib.  43Q. 


CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  vs.  Edwards. — 18:29. 

Wright  vs.  Simpson,  6  res.  734.  Craythornc  vs.  Swinburne,  14 
Fes.  1G1. 

3.  The  notes  of  Mrs.  Edwards,  were  not  a  substitute  in  the 
place  of  the  notes  drawn  or  endorsed  by  Middleton.    If  they 
were,  such  substitute  could  not  have  been  for  more  than  $500. 

4.  He  denies  the  want  of  due  diligence  on  the  part  of  the 
bank.     There  was  no  application  made  to  the  appellants  by  the 
surely  to  proceed  against  the  principal.   Wright  vs.  Simpson, 
6  Fes.  734.  King  vs.  Baldwin,  2  Johns.  Ch.  Rep.  554. 

R.  Johnson,  for  the  appellee.  I.  Assuming  Mrs.  Edwards 
to  be  a  surety  of  Slansbury,  and  as  such,  that  she  would  have 
been  entitled  to  the  benefit  of  the  mortgage.  Has  she  placed 
herself  in  a  situation  to  claim  the  protection  of  this  court  ?  The 
debt  has  not  been  paid  ;  and  the  surety  is  entitled  to  the  benefit 
of  the  pledge  made  for  its  payment  to  the  creditor.  Hayes  vs. 
Ward,  4  Johns.  Ch.  Rep.  132.  The  proper  time  for  applying  to 
the  Court  of  Chancery  for  apportionment  has  arrived.  Ex  purte 
Langston,  17  Ves.  227. 

2.  Is  not  Mrs.  Edwards  to  be  considered  as  a  surety,  and 
entitled  to  protection  as  such,  though  she  was  not  known  by  the 
bank?     Clopper  vs.  Union  Bank  of  Maryland,  7  Ilarr.  fy 
Johns.  92.  Claythornc  vs.  Swinburne,  14  Ves.  170.     The  mort- 
gage being  of  record,  showed  to  the  world,  that  whatever  not  3 
was  drawn  or  endorsed  by  Stansbury,  came  within  the  provi- 
sions of  the  mortgage. 

3.  Is  not  Mrs.  Edwards  entitled  to  be  protected  by  the  mort- 
gage, equally  with  the  other  endorsers  of  the  notes  of  Stansbury? 
The  mortgage  was  not  to  pay  any  particular  note  or  debt  then 
due  to  the  bank;  and  in  the  answer  of  Stansbury  to  the  bill  filed 
against  him  for  a  foreclosure  of  the  mortgaged  premises,  he 
stated  that  he  owed  the  bank  820,000.     The  decree  by  con- 
sent, was,  however,  to  pay  the  complainants  not  exceeding 
$1 9,258.     This  sum  covered  the  whole  amount  of  all  the  notes 
of  Stansbury,  including  those   drawn  or  endorsed  by  Mrs. 
Edwards.   There  is  nothing  in  the  mortgage  to  show  that  it  was 
to  secure  the  preferred  debt  of  $ 8700,  arising  upon  Stansbury^ 


OF  MARYLAND.  359 


Union  Bank  of  Maryland  vs.  Edwards. — 1829. 


note  to  the  bank,  on  which  there  was  no  endorser  ;  and  no  parol 
evidence  can  be  admitted  to  contradict  the  mortgage. 

4.  The  agreement  relative  to  the  evidence  taken  after  the 
decree,  was  not  intended  that  the  whole  of  what  was  contained 
in  the  affidavits  should  be  used  as  evidence ;  but  only  such  as 
was  legally  admissible.     A  great  part  of  the  facts  proved,  do 
not  apply  to  the  issue  between  the  parties,   flayward  vs.  Carroll, 
4  Harr.  8f  Johns.  521.     Jones  vs.  Slubey,  5  Harr.  8f  Johns. 
382.    Westley  vs.  Thomas,  6  Harr.  #  Johns.  24,  27.    The  evi- 
dence is  that  the  mortgage  was  executed  to  secure  a  particu- 
lar debt  due  at  the  time.     In  the  answer  to  the  appellee's  peti- 
tion in   the  case  under  the  agreement,  the  bank  prayed   to 
amend  it,  which  the  Chancellor  refused  to  grant.   The  evidence 
was  inadmissible  on  the  ground  that  it  contradicted  the  mort- 
gage.   It  changes  the  legal  operation  of  a   particular  clause 
in  the  mortgage.     Westley  vs.  Thomas,  6  Harr.  fy  Johns.  27. 
Watkins  vs.  Stockett,  Ib.  435.     The  mortgage  was  to  secure 
all  notes  drawn  or  endorsed  by  Stansbury. 

5.  The  evidence  is  sufficient  to  show  that  the  notes  drawn  by 
Mrs.  Edwards,  were  a  substitute  for  the  notes  which  had  been 
drawn  by  Middleton  in  favor  of  Stansbury,  and  by  him  en- 
dorsed to  the  bank;  and  that  the  notes  so  drawn  by  Middleton, 
were  in  the  bank  at  the  time  of  the  mortgage. 

Williams,  (District  Attorney  of  TJ.  S.)  also  for  the  appellee. 
The  bank  could  not  but  know  most  of  the  transactions  and  inten- 
tions of  the  parties  in  1822,  rather/ than  in  1826.  The  mort- 
gage, bill,  answer  and  decree  were  all  in  1822,  and  show  the 
clear  understanding  of  the  parties.  Middletori's  were  clearly 
accommodation  notes — commenced  in  1821,  and  continued  to 
August,  1822.  They  were  then  retired  by  Mrs.  Edwards'1 3 
notes,  and  not  by  the  receipt  of  $9000.  In  Baltimore  the  bor- 
rowers on  accommodation  notes  generally,  almost  universally 
appear  as  endorsers  and  not  as  drawers.  All  the  notes  are 
dated  two  years  after  the  mortgage  deed;  and,  therefore  the 
terms  of  the  mortgaged  are  insisted  on.  The  notes  of  Middk- 
ton  and  of  Mrs.  Edwards,  were  expressly  proved  to  be  ac- 


360         CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  vs.  Edwards.— 1829. 

commodation  notes,  this  was  proved  by  Stansbury.  Certain  de- 
positions were  filed  after  the  Chancellor  had  decreed  on  the 
proceedings  under  the  petition  of  Mrs.  Edwards.  The  deposi- 
tion of  Pinkncy  contradicts  that  of  Stansbury,  and  is  contradict- 
ed hy  all  probability  and  bank  operations.  The  deposition  of 
Stunsbury  contradicts  his  former  deposition,  and  is  contradict- 
ed by  the  deposition  of  Frisby,  which  is  mostly  to  be  relied  on 
— Stansbury  is  a  director  of  the  bank. 

The  bank  cannot  elect  to  apply  this  money.  1.  Because  the 
deed  of  mortgage  forbids  such  election;  and  parol  testimony  is 
not  admissible. 

2.  Because  they  signified  a  different  election  at  the  time  of 
filing  their  bill,  &c.  Ham.  Dig.  253.  Devaynes  vs.  A*o6/e,  1 
Meriv.  608. 

We  appeal  from  the  conduct  of  the  bank  in  July,  1826,  to 
their  conduct  in  1822;  and  insist  on  the  decree  of  1822.  No 
parol  understanding  can  be  admitted  to  contradict  the  mortgage, 
bill,  decree,  &c.  especially  so  as  to  affect  third  parties. 

1.  The   bank  do  not  pretend  an  ignorance  that  the  notes  of 
Mrs.  Edwards  were  accommodation  and  not  real  notes,  until 
after  the  decree  of  1826.     Yet  Mrs.  Edwards  expressly  states 
them  to  be  accommodation  notes  in  her  first  petition.    But  it  is 
no  matter  whether  the  bank  knew  it  or  not,  if  thej  were  really 
so.    Her  notes  were  substituted  for  those  of  Middleton;  and  are 
so  proved.     If  they  were  not  substituted;  yet  her  notes  are  com- 
prehended in  the  terms  of  thejnortgage,  bill,  answer  and  de- 
cree, &c. 

2.  The  bank  had  the  power  to  limit  all  their  discounts  to 
within  the  value  of  the  property;  while  Mrs.  Edwards  had  no 
such  control. 

3.  The  late  language  of  the  bank,  and  Pinkney's  deposition 
are  inconsistent  with  their  being  real  notes. 

4.  Mrs.  Edwards  is  prima  facie  entitled  under  the  mortgage 
deed;  and  she  is  only  to  be  thrown  out  by  being  shown  to  be 
a  debtor.     She  relied  on  the  mortgage  as  recorded.     She  does 
not  ask  for  the  money,  but  only  asks  for  its  proper  application. 


OF  MARYLAND.  361 


Union  Bank  of  Maryland  vs.  Edwards. — 1829. 


Taney  (Attorney  General)  in  reply. 

The  question  is,  whether  or  not  the  fund  arising  from  the  sale 
of  the  mortgaged  premises,  is  to  be  applied  to  the  payment  of 
a  particular  note,  mentioned  in  the  mortgage,  or  pro  rata,  to  the 
payment  of  the  whole  of  the  notes  ? 

The  mortgage  was  given  to  secure  the  debt  of  $9000,  and 
neither  the  Bank,  or  Stansbury,  understood  or  intended,  that 
any  other  note  was  to  be  paid,  or  secured  by  it,  until  after  the 
payment  of  that  debt.  This  is  proved  by  Pmfcwei/and  Stansbury. 

The  mortgage  was  for  the  benefit  of  the  Bank,  and  not  for 
the  securities. 

1.  Independent  of  the  parol  evidence,  what  is  the  effect  of 
the  mortgage  ? — it  was  taken  by  the  bank  for  its  own  benefit, 
not  to  indemnify  securities.  The  bank  could  never  have  inten- 
ded to  place  themselves  upon  the  footing,  on  which  the  decree 
has  placed  them.  The  liability  of  the  endorsers,  &c.  was 
superadded  to  that  of  the  mortgage.  The  endorsers  have  no 
equity — they  were  not  deceived  by  the  bank — the  bank  is  not 
responsible  for  what  Mrs.  Edwards  might  have  in  view,  or 
thought,  or  was  informed  on  the  subject,  not  proceeding  from 
it,  or  its  agency.  The  mortgage  embraces  all  notes,  whether 
Slansbury  be  drawer,  or  endorser,  principal,  or  surety — suppose 
Stansbury,  to  be  the  endorser;  then  he  is  to  come  in,  according 
to  the  decree  as  surety,  and  claim  to  be  exempted  pro  rala — 
all  securities  are  not  of  necessity  to  contribute  pro  rata,  it  de- 
pends upon  the  engagement  entered  into.  Craythorne  vs.  Sicin- 
burne,  14  Ves.  160. 

The  mortgage  was  not  to  project  the  securities  at  the  ex- 
pense of  the  bank. 

Suppose  Stansbury  to  be  solvent,  and  able  to  pay  his  debts, 
could  not  the  bank,  go  against  Mrs.  Edwards,  and  leave  her  to 
her  remedy  against  Stansbury.  She  has  no  right  to  demand  of 
the  creditor  any  fund,  until  the  creditor  is  satisfied.  •  Could  she 
come  upon  the  fund,  and  compel  the  bank  to  proceed  against 
Stansbury,  if  he  was  in  a  condition  to  pay  ? — 4  Johns.  Ch.  Rep. 
123,124,131.  2  Johns.  Ch.  Rep.  554. 
VOL.  I— 46 


CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  vs.  Edwards — 1829. 

JJ/rs.  Edwards's  notes  were  not  substituted  for  those  of  JWid- 
dleton.  J\Ir.  Pinkncifs  evidence  disproves  that,  and  none  of 
Mrs.  Edwards  notes  correspond  with  tMiihllcton>s. 

Mrs.  Edwards  was  not  a  security  on  any  of  the  notes  when 
the  mortgage  was  executed.  JWiddlelori's  was  a  real  and  not 
an  accommodation  note. 

2.  If  the  parol  evidence  is  admissible,  it  is  conclusive.    Is 
it  admissible? — Between  these  parties  it  is,  to  shew  what  debt, 
it  was  the  object  of  the  mortgage  to  secure.     The  mortgage  is 
no  estoppel  as  to  JWrs.  Edwards,  as  she  was  no  party  to  it.     As 
between  the  immediate  parlies  to  the  instrument  parol  evidence 
would  be  inadmissible;  but   the   rule  is   different,  as  regards  a 
stranger.     There  can  be  no  estoppel,  unless   it  is  mutual.    It 
operates  between  the  parties  to  the  instrument,  but  does  not 
apply  to  strangers.     3  Stark.  Evid.  1052,  1054.  Craythorne  vs. 
Swinbttrne,  14  Fes.  159,  168,  170. 

The  parol  evidence  is  not  offered  to  contradict  the  terms  of 
the  mortgage;  but  in  aid  of  it,  to  shew  the  amount  of  the  sum 
raised — who  were  the  drawers,  and  who  the  endorsers. 

This  is  not  a  case  in  which  a  regular  issue  is  joined.  A  fund 
is  in  court,  which  two  parties  claim.  The  question  was  how 
the  fund  was  to  be  distributed  ?  Not  to  be  placed  before  the 
court,  by  bill  and  answer,  or  any  regular  form  of  pleading. 
Nothing  more  was  necessary,  than  to  state  the  ground,  upon 
which  each  party,  claimed  the  fund. 

3.  It  is  said  the  bank  was  too  late.     That  the  decree  for  the 
sale  changed  the  relative  situation  of  the  parties. 

The  Chancellor  dismissed  the  petition  of  the  bank,  upon  the 
ground  that  he  had  made  up  his  opinion,  as  to  the  manner  in 
which  the  fund  should  be  distributed. 

R.  Johnson  for  appellee — In  explanation  of  the  rule  as  to  the 
admissibility  of  parol  evidence.  The  rule  in  relation  to  parol  evi- 
dence is,  that  no  one  of  the  parties  to  the  written  contract,  can 
introduce  it,  especially  as  against  strangers  to  it.  As  between 
parties  to  the  instrument,  it  might  be  admitted  in  some  cases. 
Union  Bank  vs.  Belts  and  wife,  I  Harr.  &f  Gill,  175. 


OF  MARYLAND.  863 


Union  Bank  of  Maryland  vs.  Edwards.— 1829. 


DORSEY,  J.  delivered  the  opinion  of  the  court.  The  rights 
of  the  parties  in  controversy  in  this  cause,  entirely  depended 
upon  the  true  construction  of  the  mortgage  from  William 
Stansbury  to  the  Union  Bank  of  Maryland,  bearing  date  the 
27th  day  of  July,  1822.  Its  objects  as  set  forth  in  the  recital, 
was  to  secure  the  payment  to  the  Union  Bank  of  Maryland, 
of  all  and  every  sum,  or  sums  of  money  then  owing,  or  which 
might  thereafter  become  due  or  owing1  from  the  said  William 
Stansbury  to  the  said  bank,  upon  any  promissory  note  or  notes 
negotiated,  or  to  be  negotiated,  at  that  bank,  of  which  he  was 
or  might  be  either  drawer  or  endorser.  He  is  described  as/ 
a  merchant  of  the  city  of  Baltimore,  and  it  is  apparent  that  by 
the  execution  of  this  deed,  he  designed  not  only  to  provide  an 
indemnity  to  the  bank  for  what  he  -already  owed,  but  to  obtain 
for  himself  a  credit  at  that  institution,  which  would  induce  a 
more  free  discount  or  negotiation  of  notes,  on  which  Stansbury's 
name  should  appear  as  either  drawer  or  endorser.  Such  a 
facility  is  an  object  of  primary  importance  to  him  who  is  en- 
gaged in  commercial  pursuits.  Its  value  to  Stansbury  is  mani- 
fest, enabling  him  to  obtain  an  immediate  accommodation 
discount  of  nine  thousand  dollars  on  his  own  note,  without  an 
endorser.  In  litigating  these  rights,  it  is  competent  for  either 
party  to  prove,  what  notes  drawn  and  endorsed  by  Stansbury, 
and  discounted  at  the  Union  Bank,  existed  on  the  27th  of  July, 
1822,  when  the  mortgage  was  executed;  and  also  all  such  as 
were  negotiated  at  that  bank,  subsequently  to  that  period. 
The  first  negotiation  of  Elizabeth  Edwards's  paper,  was  in  Sep- 
tember, 1822. 

To  this  mortgage,  Stansbury  and  the  Union  Bank  alone  were 
parties.  Under  it  at  law,  no  right  was  acquired,  no  interest 
passed;  upon  it, 'no  action  could  be  maintained  but  by  the  bank. 
All  the  circumstances  which  preceded  its  existence,  and  imme- 
diately followed  its  birth,  demonstrate  that  the  object  of  its 
execution  was,  not  to  indemnify  those  who  were  or  might 
become  his  drawers  or  endorsers;  but  to  ensure  to  the  Union 
Bank,  the  payment  of  all  notes  negotiated  by  them,  on  which 
his  name  might  appear  either  as  maker  or  endorser.  'Tis 


364          CASES  IN  THE  COURT  OF  APPEALS 

Union  Bank  of  Maryland  vs.  Edwards — 1829. 

true,  if  the  fund  had  been  sufficient,  those  who  were  on  his 
paper,  would  in  equity  be  protected  from  loss.  But  this 
was  a  consequence,  not  the  design  of  his  act.  The  legal 
construction  of  this  instrument,  is  in  strict  accordance  with 
what  we  have  stated  as  the  manifest  object  of  its  creation 
Such  being  the  posture  of  the  parties  at  law;  upon  what. prin- 
ciple is  it,  that  a  court  of  equity  can  be  called  on  to  change 
their  condition  ?  In  construing  agreements,  it  is  said  a  Court  of 
Chancery  will  sometimes  adopt  a  more  liberal  and  enlarged 
construction,  than  prevails  at  common  law.  But  this  latitude,  if 
it  exist  at  all,  can  never  be  tolerated,  unless  it  be  necessary  to 
effectuate  the  motives  which  induced  the  contract.  Here,  no 
such  necessity  exists.  The  most  perfect  harmony  prevails  be- 
tween the  agreement  executed,  and  the  obvious  intention  of  its 
framers.  To  adopt  the  interpretation  of  the  mortgage,  which 
was  insisted  on  for  the  appellee,  viz :  that  the  property  was 
conveyed  to  the  bank,  in  trust  to  be  appropriated  rateably  to 
the  payment  of  all  notes  negotiated  with  them,  of  which  Stans- 
bury  was  either  the  drawer  or  endorser,  would  be  to  defeat  a 
leading  object  of  Stansbury  in  making  the  conveyance.  In- 
stead of  giving  additional  credit  to  his  name,  and  a  consequent 
increase  to  his  favors  at  the  bank  ;  it  wrould  have  been  the  most 
effectual  means  which  he  could  have  adopted,  to  exclude  him- 
self from  all  further  discounts.  As  he  then  stood,  the  payment 
of  the  nine  thousand  dollar  note,  was  amply  covered  by  the 
property  mortgaged.  But  every  additional  discount  in  propor- 
tion to  its  amount,  reduced  the  security  for  the  payment  of  that 
note.  So  that  should  the  bank  have  increased  their  accommo- 
dations to  Stansbury  to  ninety  thousand  dollars,  they  would 
thereby  have  relinquished  nine-tenths  of  the  security,  which  they 
had  previously  held  for  the  payment  of  the  note  of  nine  thou- 
sand dollars.  Nay,  such  are  the  positive  terms  of  this  deed,  if 
clothed  with  the  attributes  of  a  deed  of  trust,  which  are  attempt- 
ed to  be  affixed  to  it,  that  should  Stansbury,  holding  a  real  note 
of  the  most  opulent  merchant  in  Baltimore,  have  obtained  its 
discount  at  the  Union  Bank,  eo  inslanti,  such  merchant  might 
demand  its  entire,  orp-o  rata  payment  out  of  Stansbunfs  mort- 


OF  MARYLAND.  365 


Union  Bank  of  Maryland  vs.  Edwards — 1829, 


gaged  estate.  The  deed  providing,  not  merely  for  the  payment 
of  notes  negotiated  for  the  account  or  accommodation  of  Stans- 
bury,  but  of  all  notes  bearing  Stanbury's  name,  no  matter  for 
whom  discounted. 

The  attempt  to  sustain  the  claim  of  the  appellee  by  the  doc- 
trine of  substitution,  is  equally  untenable.  Such  relief  is  never 
extended  to  a  security,  but  upon  the  assumption  that  the  credi- 
tor's debt  has  been,  or  is  to  be  fully  paid :  that  his  further  deten- 
tion of  the  mortgaged  property  is  against  equity  and  good  con- 
science. Can  it  be  deem°.d  an  equitable  substitution,  which 
whilst  it  left  in  full  force  and  unsatisfied,  the  just  claims  of  a  cre- 
ditor, should  wrest  from  him  tb^  fund  specifically  pledged  for 
their  payment,  and  leave  him  destitute  of  any  other  source  to 
which  he  might  apply  for  indemnity?  If  after  satisfying  all 
debts  due  to  the  Union  Bank  on  Stansbury^s  notes  by  them  dis- 
counted, there  should  remain  a  surplus  of  the  mortgaged  fund, 
to  that  amount,  might  the  drawers  and  endorsers  of  his  accommo- 
dation notes,  who  had  made  payments  to  the  Union  Bank,  seek 
to  be  substituted  ? 

The  order  of  the  Chancellor  ratifying  the  auditor's  state- 
ment, making  a  rateable  distribution  of  the  proceeds  of  sale  of 
the  mortgaged  premises,  between  Elizabeth  Edwards,  and  the 
Union  Bank  of  Maryland,  is  reversed  with  costs,  so  far  as 
regards  the  application  of  the  funds  to  the  payment  of  Stans- 
frwry's  notes  negotiated  at  said  bank.  The  order,  so  far  as  it 
ratifies  the  residue  of  said  statement,  is  affirmed. 

This  court  will  sign  an  order  or/decree,  directing  the  trustee 
to  pay  the  amount  thus  applied  to/  the  Union  Bank  of  Maryland 
on  account  of  William  Stansbury^s  notes  to  them  for  $8700. 


366          CASES  IN  THE  COURT  OF  APPEALS 
Hays  vs.  Richardson.— 1829. 

HAYS  vs.  RICHARDSON. — December,  1829. 

No  person  who  U  called  as  a  witness,  not  being  a  party  to  the  suit,  can  refuse 
to  give  testimony  on  tne  ground,  that  he  may  thereby  become  liable  to  a 
civil  action  not  of  a  penal  nature,  or  sustain  pecuniary  loss,  or  that  the 
Terdict  may  be  used  as  evidence  against  him  in  some  other  civil  proceeding 
then  pending,  or  which  may  thereafter  be  instituted. 

A  witness  on  the  roir  dire,  may  by  the  party  objecting  to  his  examination  in 
chief,  for  the  purpose  of  shewing  his  interest,  be  called  on  to  state  the  con- 
tents of  written  instruments,  which  are  not  produced;  and  the  reason  as- 
signed is,  that  the  party  objecting,  could  not  know  previously,  that  the  wit- 
ness would  be  called,  and  consequently,  might  not  be  prepared  with  the  best 
evidence  to  establish  his  objection. 

An  instrument  of  the  following  tenor — "I  hereby  authorize  R  to  open,  and  con- 
tinue open,  a  road  through  my  field,  beginning  at,  &c.  as  also  to  build,  keep 
in  repair,  and  use  a  bridge  over  the  branch,  in  the  field  on  which  the  said  road 
will  pass,  .said  road  and  bridge  being  intended  as  well  for  the  public  use,  as 
the  use  of  R;  and  to  continue  until  R  and  myself  shall  agree  it  shall  be  shut 
up  or  altered;"  executed  under  the  hand  and  seal  of  the  owner  of  the  land, 
is  a  grant  of  an  incorporeal  hereditament,  a  right  of  way  de  novo,  which 
will  endure  until  both  parties  agree  upon  its  discontinuance,  and  which 
must  be  acknowledged,  and  recorded  according  to  our  acts  of  registration. 

A  right  of  way  in  esse  may  pass  by  deed  of  bargain  and  sale,  duly  acknow- 
ledged and  recorded. 

A  transfer  of  way  de  noro  may  be  by  grant  or  lease,  but  cannot  be  effected  by 
way  of  bargain  and  sale. 

A  right  of  way  may  be  said  to  lie  in  the  county  where  it  exists,  or  is  exercis- 
able. 

The  acts  of  Assembly  of  1715,  ch.  47,  and  1766,  ch.  14,  being  in  pan  materiti, 
must  be  construed  together  as  one  system.  The  first  having  embraced  in- 
corporeal tenements,  and  hereditaments,  there  is  no  reason  why  they 
should  be  excluded  from  the  second.  The  act  of  1766,  cannot  be  confined 
to  conveyances  only  by  which  the  land  itself  passes,  for  the  design  was,  that 
all  rights,  incumbrances,  or  conveyances,  touching,  connected  with,  or  in 
any  wise  concerning  land,  should  appear  upon  the  public  records. 

If  contradictions  or  incongruities  exist  between  the  preamble,  and  enact- 
ing clause  of  a  statute,  the  latter  shall  prevail. 

A  cotemporaneous,  unvarying  construction  of  an  act  of  Assembly,  for  sixty 
years,  ought  not  to  be  disregarded  but  upon  the  most  imperious  and  conclu- 
sive grounds. 

APPEAL  from  Harford  County  Court.  This  was  an  action  on 
the  case  for  obstructing  a  way,  whereto  the  plaintiff  below 
(now  appellee)  claimed  right  by  virtue  of  an  instrument  of 


OF  MARYLAND.  367 


Hays  vs.  Richardson — 1829. 


writing  under  the  hand  and  seal  of  one  Joshua  S.  Bond.  The 
declaration  stated  that  on  the  7th  of  October,  1820,  at,  &c.  a 
certain  Joshua  S.  Bond,  being  seized  in  his  demesne  as  of  fee 
of  a  certain  close  there  situated,  by  his  grant  under  his  hand 
and  seal,  bearing  date  the  day  and  year  aforesaid,  (which  is 
now  here  shewn  to  the  court)  authorised  the  plaintiff  to  open 
and  continue  open  a  road  through  his  the  said  Joshua  S.  Bond's 
field,  to  wit :  The  said  close  beginning  at  the  end  of  the  short 
lane  near  the  house  of  the  plaintiff,  and  intersecting  the  Balti- 
more road,  near  a  chesnut  tree;  and  the  said  -Joshua  thereby 
also  authorised  the  plaintiff  to  keep  in  repair,  and  use  a  bridge, 
over  the  branch  running  through  the  said  field.  And  the  plain- 
tiff also  says  that  by  the  grant  aforesaid,  it  was  declared  that  the 
said  road  and  bridge  were  intended  as  well  for  the  use  of  the 
public  at  large,  as  for  the  use  of  the  plaintiff,  and  that  the  said 
uses  were  to_  be  enjoyed  until  the  plaintiff  and  the  said  Joshua 
S.  Bond  should  agree  that  the  said  road,  intended  to  be  opened 
as  aforesaid,  should  be  shut  up  or  altered.  And  the  plaintiff 
avers  that  afterwards,  &c.  he  opened  a  road  through  the  said  close 
of  the  said  Joshua,  beginning  at  the  end  of  the  said  short  lane 
near  his  the  plaintiff's  house,  and  terminating,  at,  or  near  a  chesnut 
tree,  thus  intersecting  the  road  leading  towards  Baltimore,  and 
continued  to  pass  and  repass  over  the  said  road  with  his  ser- 
vants and  horses,  &c.  for  a  long  space  of  time  to  wit,  at,  &c. 
And  he  further  avers  that  after  the  said  road  was  opened,  the 
citizens  of  this  state  passed  and  repassed  over  the  said  road. 
And  the  plaintiff  further  avers  tha£  after  the  said  road  had  been 
by  him  opened  as  aforesaid,  while  the  said  grant  was  in  full 
force  and  effect,  and  had  not  been  determined  nor  any  agree- 
ment made  between  the  said  Joshua  S.  Bond,  and  the  plaintiff, 
by  which  the  said  road  should  be  shut  up  or  altered;  the  defen- 
dant well  knowing  the  premises  and  disregarding  the  rights  of 
the  plaintiff,  and  intending  to  injure  the  plaintiff  and  deprive  him 
of  the  use  and  benefit  of  the  said  way,  to  wit,  on  the  10th  of 
August,  1823,  and  on  divers  other  days  and  times,  &c.  obstruct- 
ed the  same  road  by  placing,  &c.  and  demolished  the  bridge 
across  the  same,  &c.  by  means  thereof,  the  plaintiff  could  not 


CASES  IN  THE  COURT  OF  APPEALS 
Hays  v*.  Richardson — 1829. 

during  the  time  aforesaid,  have  or  enjoy  his  said  way,  as  he  of 
right  ought  to  have  done,  to  wit,  at,  &c.  And  the  plaintiff  fur- 
ther says,  that  he  during  the  time  aforesaid,  being  a  public  Inn 
keeper,  was  much  damaged  and  injured  in  his  trade  and  calling 
by  divers  citizens,  as  well  travellers  as  others,  during  the  said 
time  being  greatly  obstructed  and  hindered  in  their  passage  to 
and  from  his  said  Inn,  the  said  road  herein  before  mentioned, 
then  and  there  leading  from  or  near  his  said  Inn,  to  the  said 
other  road  leading  towards  the  city  of  Baltimore,  to  wit,  at,  &c. 
Wherefore  the  defendant  (the  appellant)  pleaded  not  guilty,  and 
issue  was  joined. 

1.  At  the  trial,  the  plaintiff  called  Francis  A.  Bond  as  a  wit- 
ness, who  being  examined  by  the  defendant  on  the  voir  dire, 
stated  that  in  case  the  plaintiff  should  recover  in  this  cause,  he 
considered  he  should  be  obliged  to  pay  the  defendant  the  amount 
of  the  verdict,  damages  and  costs,  as  one  of  the  heirs  of  Buck- 
ler Bond,  who  had  conveyed  with  the  covenants  in  the  deed 
hereinafter  inserted,  the  land  over  which  the  way  in  the  declara- 
tion mentioned  passes,  to  the  defendant  before  the  time  stated 
of  the  trespass  complained  of,  and  that  he  was  unwilling  to  tes- 
tify in  this  case  for  the  plaintiff.     The  defendant  then  prayed 
the  court  that  the  witness  should  not  be  compelled  to  testify  for 
the  plaintiff.     But  the  court  [Hanson,  A.  J.]  directed  the  wit- 
ness to  be  sworn;  and  he  was  sworn  accordingly  in  chief.     The 
defendant  excepted. 

2.  The  defendant  further  asked  the  witness  Francis  A.  Bond, 
while  on  his  voir  dire,  if  in  addition  to  the  interest  mentioned 
in  the  first  bill  of  exceptions,  he  was  or  was  not  interested  as 
the  holder  of  a  promissory  note  or  acceptance,  conditioned  to  be 
paid  onjy  after  deducting  the  damages  and  costs  in  this  case, 
that  might  be  recovered  from  the   defendant.     But  the  court 
held  that  witness  could  not  answer  this  question,  inasmuch  as 
the  note  spoken  of  was  not  produced.     The  defendant  excep- 
ted. 

3.  The  plaintiff  then  proved  that  the  said   Joshua  L.  Bond 
mentioned  in  the  declaration  in  this  cause,  was*  seized  in  fee  of 
the  land  over  which  the  said  road  passed;  that  the  said  Bond 


OF  MARYLAND.  369 


Hays  vs.  Richardson. — 1829. 


gave  to  the  plaintiff  the  following  instrument  of  writing  which 
was  duly  proved.  "  I  hereby  authorise  William  Richardson  to 
open  and  continue  open  a  road  through  my  field,  beginning  at 
the  end  of  the  short  lane  near  his  house,  and  intersecting  the 
present  Baltimore  road,  at  or  near  a  chesnut  tree,  as  also  to  build, 
keep  in  repair,  and  use  a  bridge  over  the  branch  in  the  field  on 
which  said  road  will  pass,  said  road  and  bridge  being  inten- 
ded as  well  for  the  public  use,  as  the  use  of  Win.  Richardson, 
and  to  continue  until  William  Richardson  and  myself  shall 
agree  it  shall  be  shut  up  or  altered.  Witness  my  hand  and  seal 
this  7th  day  of  October,  1820.  Joshua  S.  Bond,  (Seal.)" 

And  that  the  plaintiff  opened  the  said  road  and  repaired  the 
bridge  in  pursuance  of  the  terms  of  the  said  instrument  of  wri- 
ting, and  used  the  same ;  and  that  the  defendant  on  the  20th  of 
August,  1823,  obstructed  the  road  aforesaid  as  stated  in  the 
declaration,  and  the  plaintiff  who  was  a  tavern  keeper  by  the 
obstruction  aforesaid  was  with  many  others  prevented  from 
using  the  said  way.  The  defendant  then  offered  in  evidence  a 
deed  duly  acknowledged  and  recorded  from  said  Joshua  S. 
Bond  and  a  certain  Buckler  Bond,  conveying  said  land  to  defen- 
dant in  fee  ;  dated  the  4th  of  June,  1823,  which  contained  a  cove- 
nant against  all  prior  incumbrances  and  liens.  And  upon  which 
deed  there  was  a  certificate  of  the  delivery  of  seisin,  to  the 
defendant  who  further  proved,  that  on  the  day  on  which  the 
deed  aforesaid  was  executed,  that  the  said  Bond  delivered  pos- 
session of  the  land  mentioned  in  said  deed  to  him.  The  defen- 
dant then  prayed  the  court  to  direct  the  Jury,  that  the  plaintiff 
was  not  entitled  to  recover,  whicn  direction  the  court  refused  to 
give.  The  defendant  excepted  ;  and  the  verdict  and  judgment 
being  against  him,  he  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN  Ch.  J.  and  EARLE, 
MARTIN  and  DORSET,  J. 

Mitchell  and  R.   Johnson,  for  the   appellant,   contended: 
1.  That  the  agreement  of  Bond  with  the  planliff  was  no  grant, 
and  could  not  be  pleaded  as  such. 
VOL.  I.— 47 


370          CASES  IN  THE  COURT  OF  APPEALS 

Hays  M.  Richardson. — 1829. 

2.  That  if  it  was  a  license,  it  was  determinable  at  the  will  of 
Bond. 

3.  That  if  not  so,  the  remedy  was  against  Bond  only,   and 
not  against  the  defendant,  who  was  a  purchaser  of  the  soil  with- 
out notice  of  this  claim. 

4.  That  if  it  were  a  grant,  it  ought  to  have  been  recorded 
to  take  effect  against  the  defendant,  as  a  purchaser  without 
notice. 

5.  That  if  it  is  to  operate  as  a  grant,  or  otherwise  to  confer 
an  interest,  it  is  a  public  road,  for  the  obstruction  of  which  no 
private  action  can  lie  in  favor  of  the  plaintiff. 

6.  That  there  is  a  variance  between  the  contract  proved,  and 
that  declared  upon. 

7.  As  to  the  first  bill  of  exceptions,  the  witness  was  directly 
interested  in  the  event  of  the  suit,  and  the  verdict  would  have 
been  good  evidence  against  him ;  aud,  therefore,  as  a  party  in- 
terested could  not  be  compelled  to  testisfy. 

8.  As  to  the  second  bill  of  exceptions,  the  question  to  the  wit- 
ness was  proper,  notwithstanding  the  non-production  of  the  note. 

1st.  Because  the  note  was  not  within  the  power  of  the  defen- 
dant, nor  in  the  possession  of  the  plaintiff.  2d.  because  the 
question  was  on  the  voir  dire  to  the  interest  of  the  witness  alone. 

1.  The  agreement  was  no  grant  to  the  plaintiff  as  he  has 
pleaded  it.     He  has  declared  on  it,  as  a  right  of  way  to  him- 
self; whereas  if  it  is  a  right  of  way,  it  is  not  to  the  plaintiff  alone, 
but  to  the  public  as  well  as  to  the  plaintiff.     The  way  when 
opened,  was  a  public  way.     3  Bac.  Jib.  tit.  Grants,  (G)  387. 

2.  But  it  was  not  a  grant  at  all ;  and  if  so  it  was  determinable 
at  the  will  of  Bond.     4  Bac.  Jib.  tit.  Leases  for  years,  178. 
Bishop  of  Bathes  Case,  3  Coke,  35.     There  is  no  difference  be- 
tween grants  and  leases ;  and  where  a  lease  depends  upon  the 
will  of  both  parties,  it  is  at  the  will  of  either  party.     2  Blk. 
Com.  146.     4  Com.  Dig.  tit.  Estate,  (H)  60,  63.     Here  Bond 
put  an  end  to  the  right  of  way  by  his  grant  to  the  defendant. 
The  plaintiff  was  to  build  and  keep  in  repair  a  bridge  ;  sup- 
pose he  neglected  to  keep  the  bridge  in  repair,  could  Bond 
have  compelled  him  to  do  so? 


OF  MARYLAND.  371 


Hays  vs.  Richardson. — 1829. 


3  and  4.  If  it  was  a  grant  of  a  right  of  way,  has  the  plain- 
tiff any  remedy  against  the  defendant,  without  notice?  There 
is  no  evidence  to  show,  that  the  defendant  had  any  notice  of  the 
grant,  if  it  be  one.  It  was  not  acknowledged  or  recorded,  but 
was  a  voluntary  transfer  or  grant  without  consideration.  Whit- 
beck  vs.  Cook,  15  Johns.  Rep.  487.  Kellogg  vs.  Ingersoll, 
2  Mass.  Rep.  97. 

5.  There  is  no  proof  which  can  entitle  the  plaintiff  to  recover. 
The  road  was  to  be  opened  for  the  use  of  the  public.     It  was 
a  right  of  way  for  the  public.  There  must  be  a  particular  right 
or  a  particular  damage  to  the  plaintiff  to  enable  him  to  sustain  the 
action.     Butler  vs.  Kent,  19  Johns.  Rep.  226.     Co.  Lilt.  56. 
(a.)  Harrison  vs.  Parker,  6  East.  152.    Here  no  particular  dam- 
age has  been  proved  to  have  been  sustained  by  the  plaintiff. 

6.  There  is  a  fatal  variance  between  the  contract  proved  and 
that  declared  upon.     The  license  states,  that  the  termination  of 
the  right  of  way  was  to  be  at  the  "  intersecting  the  present  Balti- 
more road  at  or  near  a  Chesnut  tree."    The  declaration  states  it 
to   be  "intersecting  the  Baltimore  road,  near  a  Chesnut  tree." 
When  a  written  instrument  is  pleaded  with  a  profert,  it  must  be 
recited  verbatim.     3  Stark.  Evid.  1587, 1588.  1  Chilly's  Plead. 
364.  Brook  vs.  Willet,  2  H.  Blk.  234.    Rogers  vs.  Allen,  I 
Campb.  315.  (note  «.)    Coryton  vs.  Lithebye,  2  Saund.   113. 
(note  1.)  Mellor  vs.  Spnteman,  1  Saund.  346.  (note  2.)  Esp.  Evid. 
274,  275.   Doe  vs.  Calvert,  2  East.  377.  Mban  vs.  Brownsall, 
Yelv.  164.     1  Hauk.  Ch.  76.  3  Jacob's  L.  D.  280. 

7.  On  this  point  they  referred  trf  Taney  and  Kemp,  4  Harr. 
Sf  Johns.  342.  2  Stark.  Evid.  74/4,  747.     3  Stark.  Evid.  1728, 
1648.  1  Stark.  Evid.  135.  (note.)   The  king  vs.  Inhabitants  of 
Gisburne,  15  East.  57,    A  distributee  cannot  be  called  as  a 
witness  to  testify  against  the  administrator  of  the  estate  in  which 
the  witness  is  interested,  against  his  own  consent. 

8.  On  this  point  they  referred  to  1  Stark.  Evid.  1 20.    Bolham 
vt.  Swingkr,  Peaked  A*.  P.  Cas.  218.  S.  C.  I  Esp.  Rep.  164. 
Corking  vs.  Jarrard,   I   Campb.  37.     Butcher's   Company  vs. 
Jones,  1  Esp.  Rep.  162.     2  Stark.  Evid.  756.    Butkr  vs.  Carter, 
2  Stark.  Rep.  433.   The  king  vs.  Inhabitants  of  Gisburne,  15 
East.  57. 


37*          CASES  IN  THE  COUR1  OF  APPEALS 


Hays  vs.  Ruluxrdson.— 1829. 


Gill  for  the  appellee,  contended  that  the  first  bill  of  excep- 
tions, presents  the  question,  whether  one  can  be  made  to  testify 
against  his  will  and  interest  in  a  civil  action,  not  being;  a  party 
thereto,  and  interested  in  fact  to  defeat  the  party  relying  on 
him.  This  question  is  settled  by  this  court  in  the  cases  of 
Taney  vs.  Kemp  and  Tlie  City  Bank  vs.  Batcman.  The  wit- 
ness must  testify. 

The  second  bill  of  exceptions  shews,  an  attempt,  on  the  voir 
dire  to  give  in  evidence  the  contents  of  a  written  instrument,  with- 
out producing  it,  or  accounting  for  its  absence — admitting  this  may 
be  done  where  it  would  avail  the  party  seeking  such  evidence ; 
yet,  in  this  case,  the  bills  of  exceptions  referring  to  each  other, 
the  court  must  see  that  any  benefit  which  the  defendant  could 
have  had,  from  establishing  an  interest  in  the  witness,  on  the 
second  bill  of  exceptions,  was  within  his  reach  on  the  first  ex- 
ception. The  nature  of  the  witness's  interest,  on  both  bills  of 
exceptions,  being  the  same,  as  it  could  not  avail  him  on  the  first, 
he  should  not  have  attempted  to  raise  the  same  question  again. 
No  injustice  was  done  the  defendant,  for  the  question  which  he 
was  seeking  to  raise  by  the  second  exception,  had  been  previ- 
ously decided,  and  in  a  shape  too,  to  be  reviewed  by  the  appel- 
late court.  The  second  exception  was  wholly  unnecessary ; 
and,  whatever  may  be  the  opinion  of  the  court  in  relation 
thereto,  it  ought  not  to  affect  the  cause. 

The  third  bill  of  exceptions,  covers  the  whole  controversy, 
and  the  appellee  contends:  1.  That  the  deed  from  Bond  to 
RicJiardson  is  a  grant,  or  a  binding  and  effectual  contract,  ope- 
rating necessarily  as  a  grant,  to  endure  until  the  parties  deter- 
mine the  rights  secured  by  it,  either  by  shutting  up  or  altering 
the  road  mentioned  in  it.  3  Bac.  M*  tit.  Grant,  (F)  386, 
387,  (I)  393.  Shove  vs.  Pincke,  5  T.  R.  124.  Chatham  vs.  Wil- 
liams, 4  East.  475,  476.  Chester  vs.  Willan.  2  Saund.  97.  (note 
1)4  Jacobs'*  Law  Diet.  tit.  license,  158.  2.  That  if  not  a  grant, 
is  it  a  covenant,  that  Richardson  shall  use  the  way.  Bac.  Jib.  tit. 
Covenant,  62.  3.  A  covenant  to  enjoy  a  right  of  way,  operates 
as  a  grant.  3  Com.  Dig.  lit  Chimin.  (D)  60.  4.  It  is  a  private 
way,  the  public  using  it,  and  the  sale  of  the  land,  over  which 


OF  MARYLAND.  373 


Hays  vs.  Richardson. — 1829. 
T 


the  way  passes,  after  the  grant,  do  not  determine  Richardson's 
right.  Allen  vs.  Ormond,  8  East.  4.  4  Jacobs'1  L.  D.  158.  3 
Cruse,  Dig.  tit.  Way,  115,  sec.  22.  1  Bac.  Jib.  tit.  Authority,  (P) 
321.  3  Stark.  Evid.  1680,  (note  1.)  5.  The  road  mentioned  in 
Bond^s  grant  is  not  a  public  highway.  In  this  State,  public 
highways  are  only  created  according  to*  legislative  authority, 
and  no  indictment  would  lie  for  a  nuisance  on  this  road.  It  re- 
sults from  these  positions,  that  Ricliavdson  had  a  right  of  way 
secured  to  him  by  Bond's  grant,  which  still  existed  at  the  time 
of  the  obstruction  complained  of.  It  is  admitted,  that  the  spe- 
cial damage  laid  "was  not  proved;  but  the  bill  of  exceptions  ad- 
mit an  obstruction  to  Richardson's  private  way,  if  it  exist  in 
point  of  1  w,  and  this  was  sufficient  proof  to  enable  the  jury 
to  find  for  the  plaintiff,  disregarding  the  special  damage,  and  of 
course  authorised  the  County  Court,  to  refuse  the  defendants 
prayer. 

6.  In  this  case,  notice  of  the  existence  of  the  way,  is  to  be 
presumed  in  Hays,  he  being  a  purchaser  subsequent  to  the 
opening  of  the  road.  Whitbeck  vs.  Cook,  15  Johns.  Rep.  483. 
7.  The  covenant  of  Bond  to  Hays,  that  the  former  was  seized 
and  had  power  to  convey  without  incumbrance,  is  not  broken 
by  the  fact,  that  a  right  of  way  existed  over  the  land  to  which  the 
covenant  referred.  A  right  of  way  is  a  mere  easement.  It  does 
not  diminish  the  interest  of  the  vendee  in  law.  3  Cruse,  110. 
Wkitbeck  vs.  Cook,  15  Johns.  Rep.  483.  8.  The  sale  of  the  land 
does  not  determine  the  right  of  way  ;  for  the  grantor  after  the 
execution  of  his  deed,  cannot  law/ully  do  any  act  to  prejudice 
the  rights  of  his  grantee.  Jackson  vs.  Jlldrich,  13  Johns.  Rep. 
106.  Mian  vs.  Ormond,  8  East.  4. 

It  has  been  contended  that  the  deed  from  Bond  to  Richard- 
son, is  a  grant  which  ought  to  have  been  recorded  to  take 
effect  against  the  defendant,  a  purchaser  without  notice.  This 
position  is  relied  upon  to  reverse  the  refusal  of  the  County  Court, 
to  instruct  the  Jury  that  the  plaintiff  was  not  entitled  to  recover. 
If  the  position  is  correct,  the  judgment  of  the  court  below  is  er- 
roneous. It  is  denied  that  the  defendant  is  a  purchaser  without 
notice.  His  deed  shews  an  unusual  and  remarkable  circum- 


371          CASES  IN  THE  COURT  OF  APPEALS 

Hays  rs.  Richardson— 1829. 

stance,  that  the  ancient  ceremony  of  livery  of  seisin  was  actually 
performed  in  this  case;  long  before  this,  the  road  had  been  opened 
and  used.  The  existence  of  the  road  was  palpable  to  the  de- 
fendant when  he  took  actual  possession.  In  addition  to  this, 
upon  the  authority  Whtibeck  and  Cook  before  cited,  he  is  pre- 
sumed to  have  noticeof  a  road  existing  and  used  before  his  pur- 
chase. If  then,  notice  to  the  defendant  can  affect  this  cause 
favorably  to  the  plaintiff,  the  defendant  had  both  actual  and 
constructive  notice  of  the  existence  of  the  road,  when  he  accept- 
ed his  deed  for  the  land  over  which  it  passed.  It  is  however  con- 
ceded that  if  our  acts  of  Assembly  require  this  grant  of  way  to 
be  recorded,  then  it  is  void  in  a  court  of  law,  and  the  plaintiff 
cannot  recover. 

The  only  acts  upon  the  subject,  are  those  of  1715,  ch.  47,  and 
1766,  ch.  14.,  and  it  is  supposed  that  neither  reach  this  case. 
That  the  act  of  1715  does  not  for  this  plain  reason,  that  the  8th 
section,  which  requires  deeds  to  be  recorded,  relates  to  deeds 
of  "  bargain  and  sale  only."  It  declares  that  no  manor  lands,  tene- 
ments or  hereditaments  whatsoever,  shall  pass,  alter  or  change 
from  one  to  another,  whereby  the  estate  of  inheritance  or  free- 
hold or  for  above  seven  years  shall  be  made  or  take  effect  in 
any  person  or  persons,  or  any  use  thereof  to  be  made  by  reason 
of  any  bargain  and  sale  only,  except  the  deed  or  conveyance 
by  which  the  same  shall  be  intended  to  pass,  should  be  made  by 
writing,  indented,  and  sealed,  &c. 

The  construction  of  this  act  has  always  confined  it  to  deeds 
of  bargain  and  sale — See  preamble  to  act  1766,  ch.  14.  Other 
assurances  were  not  within  its  operation — the  grant  in  question 
is  not  a  deed  of  that  character — there  is  no  consideration  mov- 
ing from  Richardson  the  grantee  to  Bond  the  grantor.  It  wants 
that  leading  distinctive  characteristic  of  a  deed  of  bargain  and 

sale. 

The  next  inquiry  is  whether  the  act  of  1766  affects  the  plain- 
tiff. It  enacts  that  no  "estate  of  inheritance  or  freehold,  or  any 
declaration  or  limitation  of  use  or  any  estate  for  above  seven 
years  shall  pass  or  take  effect,  except  the  deed  or  conveyance, 
by  which  the  same  shall  be  intended  to  pass,  shall  be  acknowl- 


OF  MARYLAND.  375 


Hays  vs.  Richardson. — 1829. 


edged  in  the  county  where  the  lands,  tenements  or  hereditaments 
do  lie  and  also  be  enrolled,"  &c.  This  act  applies  to  all  forms  of 
assurances,  and  the  only  inquiry  is,  whether  the  subject  matter 
of  this  conveyance  is  referred  to  in  the  act.  It  is  clearly  not  an 
estate  of  inheritance,  nor  a  freehold — nor  a  declaration  or  limi- 
tation of  a  use.  These  are  legal  technical  terms,  which  do  not 
apply  to  this  grant.  The  only  enquiry  now  is,  whether  any  es- 
tate, and  if  any,  whether  one  for  above  seven  years,  is  created 
by  this  grant?  The  term  estate  is  significant  of  interest — in 
wills  it  is  said  to  include  the  whole  interest — in  this  act  of  As- 
sembly associated  as  it  is,  with  estates  of  inheritance,  freehold, 
uses,  terms  for  years,  it  refers  to  estates,  in  which  as  in  the  other 
cases,  the  grantee  has  an  exclusive  interest.  Now  so  far  from 
the  grantee  having  an  exclusive  interest,  nothing  is  more  familiar, 
than  an  interest  in  one,  and  a  mere  right  of  way  in  another,  an 
easement  without  any  possessory  right  or  remedy.  In  this  case 
the  thing  granted  to  Richardson,  is  a  right  of  way  in  gross.  He 
could  not  alienate  nor  sell.  It  was  in  effect  a  mere  privilege  val- 
uable because  of  its  consequences,  but  unquestionably  having  no 
direct  tendency  to  increase  his  estate.  This  most  significant 
term  estate,  is  applied  to  inheritances,  freeholds  and  terms  for 
years — and  is  as  particularly  indicative  of  a  valuable  interest  in 
one  case  as  in  another — the  terms  "  estates  for  years"  have 
always  been  applied  to  leases — and  carry  with  them  insepa- 
rably the  idea  of  a  valuable  vendible  interest  in  the  gran- 
lee.  In  the  enacting  clause  of  the  act  of  1766,  the  language  dif- 
fers from  the  same  clause  in  the^ct  of  1715.  The  latter  de- 
clares that  "  no  manor  lands,  tenements  or  hereditaments  shall 
pass" — which  the  former  declares  that "  no  estate  of  inheritance, 
freehold  or  use  or  for  above  seven  years  shall  pass"— why  this 
distinction  in  the  language,  entirely  of  a  technical  cast,  if  the 
legislature  did  not  take  and  adopt  the  known  difference  between 
a  privilege,  and  an  interest?  The  preamble  of  the  act  of  1766, 
declares  also  that  "  a  general  registry  of  all  deeds  and  convey- 
ances of  land  would  secure  creditors,  &c."  This  confirms  our 
views,  and  sustains  the  opinion  of  the  court  below. 


376         CASES  IN  THE  COURT  OF  APPEALS 

ll.iys  vs.  Richardson — 1829. 

DORSEY,  J.  delivered  the  opinion  of  the  court  at  this  term. 

The  only  question  arising  on  the  first  bill  of  exceptions  is, 
were  the  court  below,  right,  in  compelling  a  witness  to  give  tes- 
timony, which  might  subject  him  to  a  civil  action  or  pecuniary 
loss,  when  offered  by  the  party  against  whom,  his  interest 
would  prompt  him  to  testify?  On  this  subject,  we  have  no 
doubt,  since  the  decisions  of  this  court,  in  the  cases  of  Taneyvs, 
Kemp,  and  t lie  City  Sank  of  Baltimore  vs.  Sateman.  In  Mary- 
laud,  the  rule  of  law  is  settled,  that  no  person  who  is  called  as  a 
witness,  (not  being  a  party  to  the  suit)  can  refuse  to  give  testi- 
mony on  the  ground,  that  he  may  thereby  become  liable  to  a 
civil  action,  not  of  a  penal  nature,  or  sustain  pecuniary  loss,  or 
that  the  verdict  may  be  used  as  evidence  against  him,  in  some 
other  civil  proceeding  then  pending,  or  which  may  thereafter 
be  instituted.  Of  the  opinion  of  the  County  Court  on  this  point 
in  the  cause,  we  entirely  approve,  but  we  cannot  concur  with 
them,  in  the  decision  they  have  given  in  the  second  bill  of  ex- 
ceptions. It  is  wisely  settled  agreeably  to  the  suggestions  of 
public  justice  and  expedience,  that  a  witness  on  the  voir  dire 
may  by  the  party  objecting  to  his  examination  in  chief,  for  the 
purpose  of  shewing  his  interest,  be  called  on  to  state  the  contents 
of  written  instruments,  which  are  not  produced,  and  the  reason 
assigned  is,  that  the  party  objecting  could  not  know  previously, 
that  the  witness  would  be  called,  and  consequently  might  not 
be  prepared  with  the  best  evidence  to  establish  his  objection. 
For  authorities  on  this  subject,  vide  1  Stark.  Ev.  120.  2 
Stark.  Ev.  756,  and  the  cases  there  referred  to.  In  the  third 
bill  of  exceptions  is  involved  a  question  of  much  greater  difficul- 
ty and  doubt.  If  the  instrument  of  writing  given  by  Bond  to  the 
appellee,  be  considered  a  grant  of  an  easement  or  right  of  way, 
(as  according  to  law  and  the  apparent  intent  of  the  parties,  it  may 
be,  if  viewed  without  reference  to  our  acts  of  registration)  then 
it  becomes  necessary  to  examine  what  is  the  character  of  the 
interest  transferred,  and  how  far  it  is  a  subject  operated  on,  by 
the  act  of  Assembly  of  1715,  ch.  47,  entitled  an  act  for  qui^ 
eting  possessions,  enrolling  conveyances,  and  securing  the 
estates  of  purchasers."  It  has  been  urged  that  the  right  transfer- 


OF  MARYLAND.  377 


Hays  vs.  Richardson. — 1829. 


red,  is  nothing  more  than  a  tenancy  at  will.     But  such  a  con- 
struction is  not  warranted  by  the  terms  of  the  contract.    It  is  not 
a  demise,  or  conveyance  to  continue,  in  the  appropriate  phrase- 
ology of  such  tenures  "  quamdiu  ambobus  partibus  placuerit," 
and  which,  by  the  unambiguous  terms  of  its  creation,  must  ex- 
pire as  soon  as  its  continuance  ceases  to  be  the  will  of  both  par- 
ties ;  but  it  is  a  grant  whose  duration  is  not  to  terminate  until  the 
will  of  both  parties  unites  for  its  discontinuance.     In  the  lan- 
guage of  the  agreement,  it  is  to  continue  until  Richardson  and 
Bond  shall  agree,  it  shall  be  shut  up  or  altered.     Bond's  deter- 
mination alone,  therefore,  as  evidenced  by  his  conveyance  to 
the  appellant,  is  not  a  happening  of  the  contingency  on  which 
the  estate  was  made  to  depend.     It  is  unnecessary  to  determine 
whether  this  easement  was  to  expire  with  the  life  of  Richard- 
ton,  or  to  remain  after  his  death  for  the  use  of  the  public  ;  in 
either  event,  enrollment  is  necessary,  if  the  subject  matter  of 
conveyance  be  such  as  is  contemplated  by  either  of  the  afore- 
mentioned acts  of  Assembly.   The  title  of  the  first  act  of  Assem- 
bly distinctly  sets  out  its  object,  viz :  the  "  quieting  possessions, 
enrolling  conveyances,  and  securing  the  estates  of  purchasers  •," 
and  for  the  accomplishment  of  that  most  desirable  end,  the  8th 
section  provides  that  "  no  manors,  lands  tenements  or  heredita- 
ments whatever,  within  this  province,  shall  pass,  alter  or  change, 
from  one  to  another,  whereby  the  state  of  inheritance  or  free- 
hold, or  any  estate  for  above  seven  years  shall  be  made  or 
take  effect  in  any  person  or  persons,  or  any  use  thereof  to  be 
made,  by^eason  of  any  bargain  and/sale  only,  except  the  deed 
or  conveyance  by  which  the  same'  shall  be  intended  to  pass, 
alter  or  change,  be  made  by  writing,  indented  and  sealed,  and 
the  same  be  acknowledged  in  the  provincial  court,  or  before 
one  justice  thereof,  or  in  the  County  Court,  or  before  two  of 
the  justices  of  the  sajJie,-  where  such  manors,  lands,  tene- 
ments, or  hereditaments  lie,  and  enrolled  within  six  months  af- 
ter the  date  of  such  writing  indented  as  aforesaid."    The  first 
enquiry  to  be  disposed  of  is,*  whether  the  estate  or  right  de- 
signed to  be  transferred  by  the  grant,  be  an  t*«reditament,  (as  that 
is  the  most  comprehensive  term,  including  both  lands  and  tene- 
VOL.  I.— 48 


378          CASES  IN  THE  COURT  OF  APPEALS 
Hoys  vs.  Richardson. — 1829. 

ments.)  In  2  Bla.  Com.  p.  20,  an  incorporeal  hereditament  is  de- 
fined to  be  "  a  right  issuing  out  of  a  thing  corporate  (whether 
real  or  personal)  or  concerning,  or  annexed  to,  or  exercisable 
within  the  same,"  which  incorporeal  hereditaments,  the  learn- 
ed commentator  states  in  the  succeding  page,  "  are  principally 
of  ten  sorts,  advowsons,  tithes,  commons,  ways,  offices,  digni- 
ties, franchises,  corrodies  or  pensions,  annuities  and  rents,"  and 
in  page  35  of  the  same  book,  it  is  said  "  a  fourth  species  of  in- 
corporeal hereditaments  is  that  of  ways,  or  the  right  of  going 
over  another  man's  ground.  This  may  be  grounded  on  a  special 
permission,  as  when  the  owner  of  the  land,  grants  to  another 
the  liberty  of  passing  over  his  grounds,  to  go  to  church,  to  mar- 
ket, or  the  like ;  in  which  case  the  gift  or  grant  is  particular, 
and  confined  to  the  grantee  alone,  it  dies  with  the  person." 
These  references  will  suffice  to  show,  that  the  way  in  question, 
is  an  hereditament.  Is  it  then  such  an  hereditament  as  the  act 
of  1715  can  operate  on?  is  the  next  question  to  be  considered 
That  act  of  Assembly,  as  appears  by  the  preamble  to  the  act  of 
1766,  is  only  applicable  to  such  conveyances  as  operate  by  way 
of  bargain  and  sale,  and  it  is  superfluous  perhaps  to  say,  that  in 
all  our  legislation  upon  the  subject  of  enrollment  of  deeds, 
where  "  hereditaments"  are  spoken  of,  they  are  such  as  attach 
or  relate  to  realty,  not  to  personalty.  If  the  deed  from  Bond 
to  Richardson  had  been  for  the  transfer  of  a  right  of  way  in 
esse,  there  can  be  no  doubt,  but  that  it  would  pass  by  deed  of 
bargain  and  sale;  and  that  for  the  legal  transfer  of  such  an  inter- 
est by  deed  of  bargain  and  sale,  all  the  solemnities  required  by 
the  act  of  1715,  must  have  been  pursued.  But  such  is  not  the 
case  before  us ;  it  is  an  attempt  to  transfer,  not  a  way  already  in 
e*se,  but  a  way  de  noro,  which  may  be  done  by  grant  or  lease  ; 
but  cannot  be  effected  by  way  of  bargain  and  sale.  As  authori- 
ties to  that  effect,  see  Beaudley  vs.  Brook,  Cro.  Jos.  189.  1  Ba. 
Abr.  468,  tit.  Bargain  and  Sale,  Utter  B,  and  Shep.  Touch. 
226,  and  the  cases  there  cited.  It  is  assuredly  no  disrespect 
to  the  Legislature  of  1715  to  suppose,  that  at  the  time  of  their 
passage  of  the  law  referred  to,  they  may  not  have  recollected 
this  technical,  subtle  distinction,  between  the  mode  of  transfer- 


OF  MARYLAND.  379 


Hays  vs.  Richardson. — 1829. 


ring  rents  and  ways  in  esse,  and  de  wore,  and  they  may  therefore 
have  acted  under  the  impression,  that  their  act,  chapter  47,  af- 
fected the  one  in  the  same  manner  that  it  did  the  other.  But, 
whether  they  did,  or  did  not  labor  under  this  misconception  of 
the  law,  according  to  our  view  of  the  rational,  liberal  construc- 
tion, that  ought  to  be  given  to  acts  of  the  Legislature,  upon 
such  subjects  as  the  present  is  wholly  immaterial. 

Experience  having  shown,  according  to  the  preamble  to  the 
act  of  Assembly  of  November  session,  1766,  chapter  14,  "  that 
the  good  end  and  purposes  of  the  said  act  (meaning  the  act  of 
1715)  are  now  in  a  great  measure  eluded  by  the  frequent  use  of 
conveyances  by  feoffment,  lease  and  release,  limitation,  and  de- 
claration of  uses,  and  other  modes  of  conveying ;  and  whereas 
a  general  registry  of  all  deeds  and  conveyances  of  land,  would 
very  much  tend  to  the  security  of  creditors  and  purchasers,  the 
preservation  of  titles,  and  thereby,  to  the  advancement  of  the 
value  of  real  estates,  and  particularly,  to  prevent  abuses  and 
deceits,  by  mortgages,  and  the  purchase  of  pretended  titles;" 
the  Legislature  enacted  "  that  after  the  first  day  of  May  next, 
(1767)  no  estate  of  inheritance  or  freehold,  or  any  declaration 
or  limitation  of  a  use,  or  any  estate  for  above  seven  years,  shall 
pass  or  take  effect,  except  the  deed  or  conveyance  by  which  the 
same  shall  be  intended  to  pass  or  take  effect,  shall  be  acknow- 
ledged in  the  provincial  court,  or  before  one  of  the  Justices 
thereof,  in  the  county  court,  or  before  two  justices  of  the  same 
county,  where  the  lands,  tenements,  or  hereditaments  conveyed 
by  such  deed  or  conveyance  do  \ie.Y  It  has  been  urged,  that  as 
the  preamble  to  the  act  of  1766  'speaks  merely  of  a  general 
registry  of  deeds  or  conveyances  of  "  land,"  that  no  recording  is 
required  by  it,  but  of  deeds  or  conveyances,  by  which  the  land 
itself  passes;  and  that  this  construction  is  strongly  supported  by 
the  words  of  the  enacting  clause,  which  requires  the  deed  to  be 
recorded  in  the  county  where  the  lands,  tenements,  or  heredita- 
ments do  tie  ;  and  the  clerks  to  keep  books  in  which  the  deeds 
are  to  be  registered,  and  alphabetted  in  the  name  of  the  parties 
thereto,  with  the  name  of  the  land  and  quantity  of  acres.  But 
these  suggestions  appear  much  more  technical  and  critical  than 


390         CASES  IN  THE  COURT  OF  APPEALS 

Hays  vs.  Richardson. — 1829. 

substantial.  Both  acts  of  Assembly  being  in  pari  materia,  must 
be  construed  together  as  one  system.  The  first  law  having  em- 
braced incorporeal  tenements  and  hereditaments,  ingenuity  itself 
cannot  insinuate  a  reason  why  they  should  not  be  included  in  the 
second.  To  confine  that  act  of  1766  to  conveyances  only,  by 
which  the  land  itself  passes,  is  utterly  subversive  of  that  com- 
plete system  of  enrollment,  manifestly  designed  to  be  establish- 
ed ;  is  inconsistent  with  that  part  of  its  preamble,  which  sets 
out  the  moving  inducement  to  legislate  on  the  subject  to  be, 
to  remedy  the  evil,  that  the  act  of  1715  extends  only  to  con- 
veyances of  lands,  tenements  and  hereditaments,  by  way  of  bar- 
gain and  sale  only,  and  that  other  modes  of  conveyance  (meaning 
by  necessary  implication  of  lands,  tenements  and  heredita- 
ments,) had  been  frequently  used  to  the  elusion  of  the  good  ends 
and  purposes  of  that  law  ;  and  is  also  inconsistent  with  that  part 
of  the  preamble,  which  declares  as  the  objects  of  the  Legisla- 
ture in  adopting  a  general  registry,  to  be  "  the  security  of  cre- 
ditors and  purchasers,  the  preservation  of  titles,  and  thereby 
the  advancement  of  the  value  of  real  estates."  If  contradic- 
tions, or  incongruities  exist  between  the  preamble  and  enacting 
clause  of  a  statute,  the  latter  shall  prevail.  There  is,  however, 
no  such  contradiction  or  incongruity,  in  the  act  in  question;  con- 
strue the  word  "of"  before  the  word  "land,"  to  mean  concern- 
ing or  relating  to  (meanings  of  which  it  is  susceptible,  and  not 
tmfrequently  bears)  and  perfect  harmony  is  at  once  restored. 
By  no  rule  of  interpretation  can  the  force  of  the  words  "  tene- 
ments or  hereditaments"  be  evaded,  or  their  introduction  into 
the  enacting  clause  be  accounted  for,  consistently  with  this  con- 
fined exposition  attempted  to  be  imposed  on  the  act  of  1766. 
As  to  the  stress  which  has  been  laid  upon  the  words  "  do  lie," 
to  prove  that  they  can  relate  to  lands  only  (as  incorporeal  here- 
ditaments, it  is  said  cannot  be  alleged  to  lie  any  where)  it  ap- 
pears to  be  a  construction  too  subtle,  not  to  say  hype  critic;  1  to 
have  entered  info  the  consideration  of  the  Legislature  in  passing 
the  law.  Nor  are  we  aware  that  it  would  be  an  unwarrantable 
invasion  of  the  rules  of  grammar,  of  the  import  of  terms,  or  the 
licensed  figures  of  speech,  to  say,  that  a  right  of  way  lies  in  a 


OF  MARYLAND.  381 

Hays  vs.  Richardson. — 1829. 

county  where  it  exists  and  is  exercisable.  As  to  the  alphabet 
to  be  kept  by  the  clerk,  with  the  entries  to  be  made  of  the 
name  of  the  land,  and  number  of  acres,  those  requisites  are 
applicable  to  the  transaction,  as  important,  and  necessary  to  the 
public  in  recording  a  deed  transferring  an  incorporeal  heredita- 
ment concerning  land,  as  if  it  had  been  a  conveyance  of  the 
land  itself.  If  this  cramped  interpretation  of  the  act  of  1766 
were  to  prevail,  by  no  possible  deed  of  conveyance  in  pais 
could  the  husband  and  wife  uniting,  grant  a  rent  charge  or  right 
of  way,  on  the  lands  of  the  /erne,  so  as  to  bind  her  or  her  heirs 
after  the  death  of  her  husband,  and  the  public,  and  the  profes- 
sion, would  learn  with  astonishment  at  this  day,  that  notwith- 
standing our  system  of  general  registry — a  grant  of  a  rent  charge 
de  noro,  equal  to  the  whole  value  of  the  land  on  which  it  at- 
taches, and  rights  of  way,  estovers,  &c.  to  any  supposable  ex- 
tent, may  be  legally  created,  without  any  entry  thereof  appear- 
ing on  the  public  records;  but  if  a  rent  charge  or  right  of  way 
in  esse  be  conveyed  by  bargain  and  sale  (the  usual  mode  of 
conveyance)  then  all  the  solemnities  of  acknowledgment,  re- 
gistration, &c.  are  required.  Cui  bono?  It  adds  nothing  to  the 
security  of  creditors  or  purchasers  of  land,  or  the  preservation 
of  their  titles,  because  such  enrollment  furnishes  them  no  means 
of  ascertaining  the  existence  of  the  conveyances.  The  alpha- 
bets discloses  not  the  name  of  any  person,  as  a  party  to  such 
conveyance,  who  ever  owned  the  land,  nor  in  your  application 
to  the  Clerk  of  the  Land  Records,  can  you  inform  him  in  whose 
name  the  search  is  to  be  made,  /It  is  a  matter  of  minor  impor- 
tance to  creditors  or  purchasers,/!©  whom  a  rent  charge  is  paya- 
ble, (they  are  rarely  for  any  length  of  time  left  uninformed  up- 
on that  subject)  but  it  is  a  matter  of  vital  importance  to  them  to 
know,  whether  there  be  a  rent  charge  or  not.  In  the  registry 
of  deeds,  therefore,  it  is  an  object  of  ten  times  more  importance 
"  to  the  security  of  creditors  and  purchasers,  the  preservation 
of  titles,  and  the  advancement  of  the  value  of  real  estates" 
that  a  record  should  be  made  of  de  novo  rent  charges,  and  in- 
cumbrances  on  land,  than  of  those  in  esse.  The  former  are  al- 
ways sought  for,  and  might  be  easily  found  by  creditors  and 


CASES  IN  THE  COURT  OF  APPEALS 
Hays  vs.  Richardson — 1829. 

purchasers,  whilsMhe  latter  are  rarely  if  ever  sought  for,  and 
could  not  be  found,  but  by  reference  to  every  deed  recorded  in 
the  Land  Records,  since  the  date  of  the  patent  of  the  tract  of 
land,  into  the  title  of  which  the  examination  may  be  made. 

We  are  aware  that  it  has  been  ruled  in  England,  that  a  li- 
cense to  use  a  beneficial  privilege  upon  the  land  of  another  is 
no  estate  or  interest  in  the  land,  and  notwithstanding  the  statute 
of  frauds  may  be  granted  without  writing.  In  the  case  of  Wood 
vi.  Lake,  Say.  3,  it  was  decided  that  a  parol  agreement  for  liber- 
ty to  stack  coals  upon  the  land  for  seven  years,  and  to  have  the 
sole  use  of  that  part  of  the  close  upon  which  the  liberty  to  stack 
coals  was  given,  is  neither  an  estate  or  interest  in  or  out  of  land. 
According  to  this  decision,  if  A  by  parol  for  valuable  considera- 
tion agree  that  B  may  stack  coals  upon  his  lands  for  ninety- 
nine  years,  renewable  for  ever ;  and  that  B  and  his  assigns  du- 
ring that  period,  have  the  sole  use  of  the  lands,  such  agreement 
is  unaffected  by  the  statute  of  frauds,  and  though  operative  to 
the  full  extent  of  its  terms,  transfers  no  estate  or  interest  in  the 
lands.     Yet  in  the  leading  case  of  Crosby  vs.  Wadworth,  6  East. 
602,  a  parol  sale  of  a  standing  crop  of  mowing  grass  then  grow- 
ing, was  held  to  be  within  the  statute  as  being  an  interest  in  the 
land.     In  Wood  vs.  Lake  the  judges  rely  on  the  case  of  Webb 
vs.  Paternoster,  reported  in  Palmer,  7 1 ,  and  Popham,  151.  Where 
a  parol  license  to  stack  hay  upon  land  was  held  a  charge  upon 
it,  in  whosoever  hands  it  might  come;  but  say  the  court,  it  is 
countermandable  unless  a  time  certain  is  fixed  for  its  enjoyment, 
"  as  if  I  license  one  to  dig  clay  in  my  land."     This  case  let  it  be 
remembered,  was  before  the  statute  of  frauds;  and  therefore 
could  be  no  warrant  for  the  decision  in  Wood  vs.  Lake.     In  fact 
the  only  question  which  could  have  arisen  in  Webb  vs.  Paternos- 
ter, as  to  the  necessity  of  writing  to  the  transfer  of  such  an  in- 
terest, as  that  attempted  to  be  created,  must  have  been  on  the 
old   principle  of  the  common  law;   that  an  incorporeal  right 
could  only  pass  by  deed.     But  if  the  opinions  of  the  court  in 
t  case  are  to  govern  cases  since  the  statute  of  frauds,"  are 
we  prepared  to  go  the  length  to  which  those  opinions  must  car- 
ry us?    To  determine  that  a  parol  license  to  dig  clay  in  land, 


OF  MARYLAND.  383 


Hays  vs.  Richardson.— 1829. 


is  the  same  as  the  privilege  to  stack  hay  on  it;  but  gives  no  inter- 
est in  the  land,  though  a  charge  upon  it  into  whosoever  hands  it 
may  come.  Or  to  illustrate  the  principle  still  further,  that  an  oral 
license  to  dig  coal  or  iron  oar  in  mines  for  five  hundred  years,  and 
agreeably  to  the  case  of  Wood  vs.  Aafce,  to  have  also  the  sole 
use  of  the  land,  in  which  the  mines  are  situated  during  that 
period,  passes  the  right  intended  to  be  conferred,  and  charges 
the  land  therewith,  is  unaffected  by  the  statute  of  frauds,  and 
yet  creates  no  lease,  estate,  or  interest  in  the  land.  It  cannot  be 
denied  that  the  case  of  Wood  vs.  Lake,  has  in  England  been  fol- 
lowed by  subsequent  adjudications.  As  late  as  the  year  1818, 
in  Taylor  v  s.  Water,  7  Taunt.  384,  Gibbs  chief  justice  of  the 
Common  Pleas,  states  that  a  license  to  enjoy  a  beneficial  privilege 
on  land  may  be  granted  without  deed,  and  notwithstanding  the 
statute  frauds  without  writing."  It  is  a  license  not  an  interest 
in  the  land."  But  these  decisions  are  irreconcilable  with  the 
opinion  of  Lord  Ellenborough  in  Fentiman  vs.  Smith,  4  East.  107 
where  the  defendant  having  orally  granted  permission  to  the 
plaintiff  to  pass  water  to  his  mill  by  means  of  a  tunnel  over  de- 
fendant's land;  who  assisted  in  making  the  tunnel,  but  after- 
wards obstructed  the  water,  in  an  action  brought  on  account 
thereof,  it  was  decided  that  "  the  title  to  have  the  water  flow- 
ing in  the  tunnel  over  the  defendant's  land  could  not  pass  by  a 
parol  license  without  deed."  Sugden  too  in  his  law  of  Vendors, 
page  57,  attacks  the  case  of  Wood  vs.  Lake  with  great  effect, 
and  pronounces  it  "  to  be  in  the  very  teeth  of  the  statute,  which 
extends  generally,  to  all  leases,  estates,  or  interests?"  In  Thomp- 
son vs.  Gregory,  4  John.  81,  the  Supreme  Court  of  JY*eu>  York, 
(of  which  Kent,  and  Spencer  were  members)  determined  that  a 
right  to  overflow  the  land  of  another,  by  the  erection  of  a  mill 
dam,  was  an  incorporeal  hereditament,  which  could  be  transfer- 
red by  deed  only,  and  not  by  parol  permission  to  use  it;  and  if 
it  were  otherwise  that  the  assignment  of  such  an  interest,  since 
the  statute  of  frauds  must  be  in  writing. 

With  such  strong  reasons  and  high  authority  for  questioning 
the  soundness  of  the  principles  adjudicated  in  Wood  vs.  Lake, 
and  subsequent  cases  which  have  followed  it,  we  feel  no  dispo- 


384          CASES  IN  THE  COURT  OF  APPEALS 
Hay»  vi.  Richardson — 1829. 

sition  for  the  sake  of  analogy  to  give  a  similar  interpretation  to 
our  act  of  Assembly  of  1766,  regulating  the  execution  and  en- 
rollment of  conveyances  of  real  property,  to  that  given  in  Wood 
vs.  Lake  to  the  statute  of  frauds.  The  language  of  its  provi- 
sions comprehends  the  privilege  attempted  to  be  conferred  by 
the  instrument  before  us,  and  the  policy  of  the  law,  the  interests 
and  convenience  of  the  public,  forbid  that  we  should  restrict  its 
operation.  In  no  other  way  can  the  leading  object  of  the  legis- 
lature, the  "securing  the  estates  of  purchasers"  be  effected; 
their  design  was,  that  all  rights,  incumbrances,  or  conveyances, 
touching,  connected  with,  or  in  any  wise  concerning  land,  should 
appear  upon  the  public  records.  If  parol  or  unrecorded  licen- 
ses of  the  character  of  that  in  controversy  were  tolerated,  frauds 
and  losses  upon  purchasers  would  be  innumerable  as  may  read- 
ily be  imagined.  A  man  might  pay  and  receive  a  deed  with  all 
the  solemnities  of  law,  and  covenants  which  could  be  devised 
(short  of  a  general  warranty  which  is  rarely  given)  for  a  hun- 
dred acres  or  more  of  valuable  meadow  land,  without  the 
knowledge  of  the  semblance  of  a  right  in  any  one  by  which  its 
value  could  be  imagined;  on  the  next  day  he  may  learn  that  his 
purchase  is  a  mockery;  that  his  neighbour  under  an  oral  license, 
from  some  remote  proprietor  of  the  property  purchased,  (of 
which  the  vendor  was  ignorant)  is  about  to  inundate  every  foot 
of  it  by  the  erection  of  a  mill-dam  below,  his  remedy  can  no 
where  be  had.  But  suppose  it  were  even  admitted,  that  the 
principles  established  in  Wood  vs.  Lake,  and  the  cases  bottom- 
ed upon  it,  stand  free  from  all  exception,  it  is  humbly  conceived 
that  the  case  now  under  consideration  is  clearly  distinguishable 
from  them.  The  statute  of  frauds  on  the  construction  of  which 
they  arose,  speaks  only  of  estates  or  interests  into  or  out  of 
lands,  whilst  our  act  of  Assembly  embraces  estates  in  lands, 
tenements  or  hereditaments,  and  if  it  be  conceded,  as  it  must  be, 
that  the  right  of  way  in  question  is  an  "  hereditament,"  it  surely 
would  be  stretching  technicality  to  the  verge  of  quibbling,  to  say 
that  the  right  which  one  has  in  an  "  hereditament"  is  not  hi» 
"  estate"  in  it. 


OF  MARYLAND.  385 


Charles  C.  Egerton,  et  al.  vs.  Thomas  B.  Reilly  and  wife. — 1829. 

If  we  entertained  even  strong  doubts  as  to  what  originally 
should  have  been  the  construction  of  this  act  of  Assembly  (of 
which  we  have  none)  they  would  in  a  moment  be  removed  by 
adverting  to  the  single  fact,  which  the  whole  land  records  of  the 
State  will  demonstrate,  that  from  the  year  1767  to  the  present 
day,  grants  and  conveyances  of  de  novo  rent  charges,  rights  of 
way,  &c.  have  been  as  uniformly  acknowledged  and  recorded, 
as  deeds  conveying  the  land  itself.  This  contemporaneous  un- 
varying construction  of  the  act  of  Assembly  for  sixty  years, 
ought  not  to  be  disregarded,  but  upon  the  most  imperious  and 
conclusive  grounds.  If  there  be  error  in  it  "  communis  error 
facitjus"  We  are  sensible  that  we  have  given  just  cause  of  com- 
plaint at  the  unusual  length  in  which  this  subject  has  been  treat- 
ed, but  the  deep  interest  felt  in  it  by  every  landholder  in  the 
State  must  be  our  apology. 

We  concur  in  the  opinion  given  by  the  County  Court  in  the 
first  bill  of  exceptions,  but  think  their  opinions  in  the  second  and 
third  are  erroneous,  and  therefore 

JUDGMENT   REVERSED. 

(JVote.)  The  decision  of  the  court  of  King's  Bench  in  Hew- 
lins  vs.  Shipman,  5  Barn,  and  Ores.  221,  has  been  met  with 
since  writing  the  above  opinion,  by  which  it  appears  that  the 
cases  of  Webb  vs.  Paternoster,  Wood  vs.  Lake,  and  Taylor  vs. 
Waters,  have  been  so  shaken,  that  they  may  be  considered  as 
virtually  over-ruled,  so  far  as  regards  the  granting  of  easements 
by  parol. 

CHARLES  C.  EGERTON,  et  al.  vs.  THOMAS  B.  REILLY  AND 
WIFE.— December,  1829. 

A  complainant  filed  an  exception  to  an  answer,  and  the  County  Court 
without  deciding  upon  it,  referred  the  case  to  the  Auditor,  who  stated  an 
account,  rejecting  a  credit  claimed  by  the  defendant's  answer  ;  to  this, 
exceptions  were  also  filed,  and  over-ruled,  and  the  account  ratified.  Upon 
appeal,  it  was  held,  that  the  County  Court  had  acted  prematurely,  that  after 
the  exceptions  to  the  answer  had  been  decided  on,  the  case  should  have 

VOL.  I.— 49. 


CASES  IN  THE  COURT  OF  APPEALS 

Charles  C.  Egerton,  tt  a/,  vs.  Thomas  B.  Keilly  and  wife. — 1829. 

been  set  down  for  argument  on  bill  and  answer,  or  a  replication  to  the  an- 
swer put  in,  and  an  opportunity  aflbrded  to  the  respondent,  to  make  out 
his  defence,  by  proof. 

APPEAL  from  an  order  of  Saint  Mary's  County  Court,  sit- 
ting as  a  Court  of  Chancery,  confirming  the  report  of  the  audi- 
tor of  that  court.  The  bill  filed  on  the  9th  of  August,  1824,  by 
the  complainants,  (now  appellees,)  stated,  that  H.  G.  S.  Key, 
one  of  the  defendants,  was  indebted  to  the  complainant  Rebecca 
Reilly  before  her  marriage  in  the  sum  of  $266.65 ;  that  the  de- 
fendant, Charles  C.  Egerton,  was  in  the  habit  of  supplying  her 
with  such  articles  as  she  required  (he,  the  said  Egerton,  being  a 
merchant,  residing  in  said  county,)  and  that  she  was  likewise  in 
the  habit,  occasionally,  of  making  small  purchases  of  the  Messrs. 
Shemwells,  likewise  merchants  of  the  said  county.  That  for 
the  purpose  of  securing  them,  and  giving  the  said  Rebecca,  a 
further  credit  with  the  said  Egerton,  she  agreed  to  give  him  a 
control  over  the  debt,  due  her  as  aforesaid  from  the  said  Key, 
with  the  express  understanding  that  the  sums  then  due  the  said 
Egerton  and  Shemwells  should  be  paid,  by  said  Egerton,  out  of 
said  debt,  and  the  balance  held  subject  to  the  order  of  said 
Rebecca,  in  pursuance  of  said  understanding,  the  said  Rebecca 
gave  to  the  said  Egerton  an  order,  dated  the  29th  of  April,  1822, 
on  said  Key  for  said  debt,  which  was  accepted,  he,  the  said  Key, 
being  aware  of  the  said  understanding.  That  Key  afterwards 
gave  his  single  bill  to  Egerton  for  the  amount,  who  thereupon 
brought  suit  and  recovered  judgment.  That  Egerton  has  paid  no 
part  of  the  debts,  which  according  to  the  foregoing  understanding 
he  was  to  have  paid  out  of  the  money  due  from  Key,  nor  did  he  give 
the  credit  to  the  said  Rebecca  which  he  stipulated  to  do  ;  but  they 
charge,  that  combining  with  Josiah  and  Philip  Turner,  also  defen- 
dants, and  intending  to  defraud  the  complainants  of  said  debt,  and 
convert  the  same  to  his  use,  and  the  use  of  the  said  Josiah  and 
Philip,  he  had  assigned  to  them  the  whole  of  said  judgment, 
when  in  fact  the  complainants  who  have  intermarried,  are  the 
equitable  owners  of  all  that  may  be  due  thereon,  after  satisfying 
the  purposes  for  which  it  was  placed  in  the  hands  of  Egerton, 
which  it  is  much  more  than  sufficient  to  do.  Prayer,  that  an 


OF  MARYLAND.  387 


Charles  C.  Egerton,  et  al.  vs.  Thomas  B.  Reilly  and  wife. — 1829. 

account  may  be  stated  between  the  said  Egerton,  and  complai- 
nants, and  that  the  aforesaid  judgment  may  be  decreed  them,  and 
in  the  meantime  that  an  injunction  may  issue  against  all  the  par- 
ties restraining  the  payment  of  the  money.  Injunctions  and  sub- 
poenas issued. 

The  answer  of  Egerton  admits  that  Rebecca,  before  her  inter- 
marriage was  in  the  habit  of  getting  family  supplies  from  the 
firm  of  Egerton  and  Pike,  of  which  he  was  a  member,  for  her 
own  use,  and  also,  as  he  alleges,  for  her  mother's  family,  and  also, 
as  he  believes,  from  the  Messrs.  Shemwells,  and  that  she  gave 
the  draft  on  H.G.  S.  Key,  as  stated,  for  which  he  gave  his  single 
bill.  That  this  single  bill  was  put  in  suit,  and  before  judgment  was 
obtained,  he  assigned  the  same  to  Josiah  and  Philip  Turner ; 
but  he  alleges,  that  the  assignment  was  made  for  a  valuable 
consideration,  being  on  account  of  a  heavy  amount  due  from 
him  to  them  ;  he  states,  that  at  the  judgment  court,  he  was  ask- 
ed by  Key  if  he  wanted  the  money,  but  upon  telling  him  that  he 
had  assigned  the  claim  to  the  Turners,  he  Key,  applied  to 
Josiah  who  was  present,  and  an  arrangement  for  a  settlement 
was  made  between  them ;  that  he,  this  defendant,  still  owes 
the  Turners  a  considerable  balance.  He  admits,  that  at  the 
time  the  draft  was  given,  it  was  understood,  that  the  dealings  of 
said  Rebecca,  with  Egerton  and  Pike,  were  to  be  paid  out  of  it, 
and  avers  that  several  other  claims,  amongst  others,  one  due 
from  one  F.  P.  Key,  were  also  to  be  paid,  as  well  as  the  claim 
against  her  individually,  which  deducted  from  the  amount  of  the 
said  draft,  would  only  leave  a  balance  of  $38.91,  which  is  all 
he  justly  owes  them.  He  denies,  that  at  the  time  the  note  of 
Key  was  executed,  there  was  any  understanding,  that  he  should 
hold  the  balance  which  might  remain  of  the  same,  for  the  use 
of  complainants,  but  states  the  understanding  to  have  been,  that 
he  defendant,  was  to  be  individually  answerable  for  any  such 
balance.  He  denies  any  agreement  to  settle  Shemivells  claim, 
and  all  fraud,  &c. 

The  answers  of  Josiah  and  Philip  Turner  state,  that  Key's 
note  was  assigned  to  them,  by  Egerton  whilst  in  suit.  That  the 
assignment  was  made  for  a  valuable  consideration,  and  that  a 


CASES  IN  THE  COURT  OF  APPEALS 

Charles  C.  Egcrton,  tt  al.  vs.  Thomas  B.  Reilly  and  wife — 1829. 

heavy  balance  is  still  due  them  from  Egerton.  They  deny  all 
knowledge  of  the  alleged  understanding  between  the  complai- 
nants, or  either  of  them  and  Egerton,  and  of  their  dealing,  ex- 
cept having  heard  Egcrton  say,  he  might  owe  a  small  balance 
on  the  transaction.  The  defendant,  Josiah  Turner,  states,  that 
at  the  judgment  court,  Key  acknowledged  the  justice  of  the 
claim,  and  after  judgment  asked  for  indulgence,  which  was 
granted  on  certain  terms  then  agreed  upon. 

The  answer  of  Key,  admits  the  debt,  and  denying  all  fraud, 
£c.  says  he  is  ready  to  pay  the  money  as  the  court  may  direct. 

At  May  term,  1825,  the  complainants  filed  exceptions  to  the 
answer  of  Egerton,  upon  the  ground  that  the  attempt  to  charge 
them  with  a  debt  due  from  F.  P.  Key  was  made  without  any 
memorandum  or  note  signed  by  either  of  them,  or  any  other 
person,  by  them  authorized  to  that  effect. 

At  August  term,  1825,  the  court  referred  the  case  to  the 
auditor,  with  directions  to  state  an  account,  which  was  accord- 
ingly stated,  and  reported  to  the  following  March  term.  At 
that  term,  the  defendants  excepted  to  the  said  report  of  the  au- 
ditor, upon  the  ground,  that  he  had  not  given  them  credit  for 
the  amount  of  the  claim  spoken  of  in  the  answer  of  Egerton,  as 
due  him  from  jP.  P.  Key,  but  the  court  over-ruled  the  said  ex- 
ception, and  ordered  that  said  report  be  ratified  and  confirmed. 

From  which  order,  the  defendants  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  EARLE  and 
DORSE Y,  J. 

A.  C.  Magruder  for  the  appellants. 

This  case  was  not  in  a  situation  to  be  sent  to  the  auditor.  The 
complainants  had  not  put  in  a  general  replication,  nor  set  it  down 
upon  bill  and  answer.  If  it  was  intended  to  put  in  a  replication, 
an  opportunity  ought  to  have  been  given  to  the  defendants  to 
establish  their  case  by  proof.  If  it  was  to  be  considered  as  be- 
ing before  the  court,  upon  bill  and  answer,  then  the  matters  set 
forth  in  the  answers,  being  admitted  to  be  true,  the  complainants 
clearly  had  no  case. 

No  counsel  appeared  for  the  appellees. 


OF  MARYLAND.  389 


Charles  C.  Egerton,  et  at.  vs.  Thomas  B.  Reilly  and  wife. — 1829. 

EARLE,  J.  delivered  the  opinion  of  the  Court. 

However  the  decision  in  this  case  in  itself  may  be  viewed, 
it  was  certainly  premature,  and  in  this  the  equity  jurisdiction 
below,  committed  an  error. 

Before  the  exceptions  to  one  of  the  answers  was  disposed  of, 
the  court  passed  an  order,  directing  the  auditor  to  state  an  ac- 
count of  the  amount  of  the  debt  due  to  the  complainants,  after 
deducting  the  debts  due  from  the  complainants  to  the  defendant, 
Egerton,  including  the  item  for  postage,  according  to  the  terms 
of  the  order  filed  in  the  cause ;  and  subsequently  ratified  and 
confirmed  the  auditor's  report  and  statement  thereon,  excepted 
to  by  the  defendants. 

The  exceptions  to  the  answer  being  decided  on,  the  case 
should  have  been  set  down  for  argument  on  bill  and  answer,  or 
a  replication  to  the  answers  put  in,  and  an  opportunity  afforded 
to  the  respondents  to  make  out  their  defence  by  proof. 

The  real  object  of  the  order  of  the  29th  April,  1822,  and  the 
transaction  growing  out  of  it,  might  then  have  been  understood, 
and  if  Egerton 's  right  to  apply  a  part  of  it  to  the  discharge  of 
Franeis  P.  Key's  account  had  not  been  substantiated  by  evi- 
dence, the  auditor's  report  rejecting  it  would  have  been  free  of 
exception,  and  the  case  of  Egerton  so  far  properly  settled 
against  him. 

An  opportunity  to  the  Turners  would  also  have  been  offered 
to  shew,  that  their  connexion  with  the  transaction  of  the  assign- 
ment of  Key's  single  bill,  was  fair  and  bona  fide,  and  that  the 
same  was  made  to  them  for  a  valuable  consideration,  and  with- 
out notice  of  any  trust  and  confidence  between  Rebecca  Key  and 
Egerton,  in  relation  to  the  debt  due  from  H.  G.  S.  Key  to  her. 

We  reverse  the  order  confirming  the  auditor's  report,  that 
the  case  may  still  take  this  course  in  Saint  Mary's  County 
Court,  and  what  appertains  to  equity  and  justice  may  yet  be 
done  between  these  two  parties  in  that  tribunal. 

Order  reversed  ;  and  adjudged,  ordered  and  decreed  by  the 
Court  of  Appeals,  that  the  order  of  Saint  Mary's  County 
Court,  as  a  Court  of  Equity,  confirming  the  report  of  the  auditor, 


390          CASES  IN  THE  COURT  OF  APPEALS 

Miller,  Ex'r  of  Beard  w.  Negro  Charles.— 1829. 

be,  and  the  same  is  hereby  reversed  and  annulled,  and  that  the 
said  court  proceed  in  the  cause,  so  that  equity  and  justice  may 
be  done  to  the  parties.  Further  adjudged,  that  the  appellees 
pay  the  appellants  their  costs  on  this  appeal. 


MILLER,  Ex'r  of  BEARD  vs.  NEGRO  CHARLES. — 
December,  1829. 

By  a  devise  in  the  following  words,  viz.  "  likewise  my  negro  man  Charles  to 
be  free  on  the  1st  day  of  January,  1827,  on  condition  that  he  pay  the  sum 
of  ten  dollars  annually,  to  my  before  named  sister  M,  so  long  as  he  lives  ;" 
it  was  the  intention  of  the  testator,  who  died  in  1825,  that  the  slave  men- 
tioned in  the  devise  should  be  free  on  the  1st  January,  1827  ;  and  it  could  not 
have  been  his  intention  that  the  condition  mentioned,  should  have  been 
performed  by  Charks,  precedent  to  that  day,  as  the  acts  to  be  done  consist 
of  payments  to  be  made  by  him  annually,  as  long  as  he  may  live. 

Upon  a  petition  for  freedom  by  a  negro  claiming  his  right  to  manumission,  un- 
der a  last  will  and  testament,  against  the  executor  of  his  deceased  master, 
the  parties  agreed  upon  a  statement  of  facts,  which  did  not  disclose  whether 
the  testator  left  assets  sufficient  for  the  payment  of  his  debts  or  not;  held 
that  the  objection  to  the  manumission  arising  from  the  insufficiency  of  as- 
sets was  not  before  the  court. 

APPEAL  from  Anne  Arundel  County  Court.  This  was  a  pe- 
tition for  freedom  filed  in  Anne,  Jlrundel  County  Court,  on  the 
10th  of  March,  1828.  The  following  statement  of  facts  was 
submitted  for  the  opinion  of  the  Court. 

It  is  admitted  in  this  cause,  that  the  said  negro  Charles  was 
the  slave  of  John  W.  Beard,  the  appellant's  testator;  that  the 
said  John  W.  Beard  died  in  October,  1 825,  having  first  duly 
made  and  executed  his  last  will  and  testament,  which  is  recor- 
ded in  the  Orphan's  Court  of  Anne  Arundel  County ;  in  which 
last  will  and  testament,  is  contained,  the  following  clause, 
"  likewise,"  my  negro  man  Charles  to  be  free,  on  the  first  day 
of  January  one  thousand  eight  hundred  and  twenty-seven,  on 
condition  that  he  the  said  Charles ,  pay  the  sum  of  ten  dol- 
lars annually  to  my  before  named  sister,  Mary  Glover,  so  long 
as  he  lives.  It  is  also  admitted  that  the  negro  Charks,  the  pe- 


OF  MARYLAND.  391 


Miller,  Ex'r  of  Beard  vs.  Negro  Charles — 1829. 

titioner,  and  the  negro  Charles  mentioned  in  the  said  clause,  are 
one  and  the  same  person,  and  that  he  was,  at  the  death  of  the 
said  John  W.  Beard,  and  on  the  first  of  January,  1827,  under 
the  age  of  forty-five  years,  and  able  to  gain  a  sufficient  lively- 
hood  and  maintenance ;  and  it  is  also  admitted,  that  the  said 
negro  Charles  paid  to  the  said  Mary  Glover,  the  sum  of  ten 
dollars  in  January,  1828,  agreeably  to  the  annexed  receipt  mar- 
ked A,  for  the  year  1827.  It  is  further  admitted,  that  at  the 
death  of  the  said  Wesley  Beard,  and  also  at  the  time  of  the  pay- 
ment of  the  said  ten  dollars,  the  said  Mary  Glover  was  a  feme 
covert.  And  it  is  further  admitted,  that  the  said  negro  Charles 
was  held  as  a  slave  by  the  personal  representative  of  the  said 
John  W.  Beard,  from  the  death  of  the  said  John  W.  Beard  till 
the  first  of  January,  1827. 

The  County  Court  rendered  judgment  on  the  case  stated  in 
favour  of  the  petitioner,  and  the  defendant  appealed  to  the  Court 
of  Appeals. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  EARLE, 
MARTIN  and  ARCHER,  J. 

Speed,  for  the  appellant,  contended,  1.  The  act  of  1796,  ch. 
67,  sec.  13,  gives  no  power  to  will  negroes  free  on  condition, 
and  the  court  will  infer  no  such  power. 

2.  This  is  a  condition  precedent,  and  as  such  repugnant,  and 
impossible  to  be  performed;  and  therefore  the  condition  and 
bequest  both  fall. 

3.  But  suppose  the  condition  tobe  a  condition  subsequent,  and 
consequently  not  impossible  to  bp  performed,  yet  the  court  will 
not  sustain  the  bequest. 

4.  If  the  court  give  judgment  of  freedom,  it  must  be  of  un- 
qualified freedom,  and  the  intention  of  the  testator  is  defeated; 
for  it  was  clearly  his  intention,  that  the  petitioner  should  not  be 
free,  unless  the  terms  imposed  on  him  by  the  bequest  could  be 
legally  and  faithfully  complied  with. 

5.  The  petitioner  does  not  state,  nor  is  it  admitted  in  the 
case  stated,  that  there  were  other  assets,  sufficient  to  discharge 
all  the  debts  of  the  deceased. 


CASES  IN  THE  COURT  OF  APPEALS 

Miller,  Kx'r  of  Beard  vs.  Negro  Charles.  —  1829. 

On  the  first  point,  he  referred  to  the  act  of  1  796,  c/i.  67,  sec.  1  3. 
Hamilton  vs.  Craggs,  6  Harr.  fy  Johns.  17.  Burrouglis  vs.  Negro 
Jinn,  4  Harr.  fy  Johns.  262.  On  the  second,  he  cited  1  T/ionuw's 
CokeLitt.  14.  2  Ib.  19—  22  (note.M.)2  Blk.  Com.  166.  Shep. 
T.  129,  130.  On  the  fifth  he  cited  2  Johns.  Rep.  243. 


Brewer,  Jr.  for  the  appellee,  referred  to  Co.  L#f.  274.  6. 
1  I  fen.  8f  Munf.  Act  of  1692,  ch.  52.    1752,  c/i.  1. 

EARLE,  J.  delivered  the  opinion  of  the  Court. 

This  cause  was  decided  in  Jlnne  Jlmndel  County  Court,  upon 
facts  agreed  on,  and  stated  between  the  parties.  The  state- 
ment briefly  represents  Charleses  right  to  freedom  under  the 
will  of  his  deceased  master,  John  W.  Beard,  and  points  to  and 
sets  out  the  particular  clause  by  which  he  claims  it.  What  is  the 
true  meaning  of  the  testator  in  this  clause  seems  to  have  been  the 
sole  question  submitted  to  that  court,  and  can  alone  have  our 
attention  in  revising  their  decision.  We  concur  with  the  Judges 
in  thinking  that  John  W.  Beard  intended  that  Charles  should  be 
a  free  man  on  the  first  day  of  January,  1827;  it  could  not  have 
been  his  intention  that  the  condition  mentioned,  should  have 
been  performed  by  Charles  precedent  to  that  day,  as  the  acts 
to  be  done  consist  of  payments  to  be  made  by  him  annually,  as 
long  as  he  may  live. 

Considered  as  a  condition  to  be  performed  subsequent  to 
freedom,  it  presents  a  question  upon  which  we  need  not  give  an 
opinion,  as  it  is  one  in  which  the  executor  can  have  no  interest. 

The  subject  of  assets  insisted  on  in  the  argument,  is  not  be- 
fore us,  and  we  shall  express  no  opinion,  in  relation  to  it.  If  it 
deeply  concerns  the  executor,  we  can  only  say,  that  he  has  had 
ample  time  to  understand  his  situation  as  to  assets,  and  to  lake 
legal  steps  for  his  security. 

We  affirm  the  judgement  of  Anne  Arundel  County  Court. 


OF  MARYLAND.  393 


Burch,  et  al.  vs.  Scott — 1829. 


BuncH,ef  al  vs.  SCOTT. — December,  1829. 

A  bill  was  filed  in  June,  1823,  and  the  usual  process  of  svbpxna  and  attach- 
ment issued,  which  were  served  on  the  defendant,  from  term  to  term,  until 
March,  1824.  He  failing  to  appear,  the  Chancellor  passed  an  order  to  take 
the  bill  pro  con/esso,  which  was  also  served  on  the  defendant  the  1st  of  May  fol- 
lowing. The  cause  was  then  proceeded  in  to  final  decree  in  August,  1825,  and 
9.  fieri  facias  issued,  returnable  to  December  term,  1825,  at  which  term  the  ori- 
ginal defendant  with  others  alleged  to  be  interested  in  the  decree,  filed  a  bill 
to  have  the  execution  countermanded,  the  decree  opened,  and  an  answer  of 
the  defendant  to  the  first  bill  accepted.  The  grounds  of  this  application  were, 
that  the  claim  was  unfounded,  that  proper  parties  were  not  originally  made, 
and  that  the  defendant  had  been  prevented  by  the  omissions  of  his  counsel 
prior  to  June,  1824,  and  by  accident  in  the  transmission  of  his  answer  since 
that  time,  from  putting  in  his  answer  as  he  designed  and  intended.  Upon 
this  the  Chancellor  countermanded  the  execution,  and  after  answers  were 
filed  controverting  this  application,  rescinded  the  decree  of  August,  1825, 
and  all  proceedings  subsequent  to  July,  1824.  Upon  appeal  it  was  held,  not  to 
be  consistent  with  the  salutary  exercise  of  that  sound  discretion  which  the 
Court  of  Chancery  possesses,  to  open  or  discharge  the  enrollment,  and  va- 
cate the  decree  in  this  case,  for  the  purpose  of  enabling  the  defendant  to 
make  his  defence. 

A  decree  of  the  Court  of  Chancery  is  to  be  considered  and  taken  as  enrolled, 
when  it  is  signed  by  the  Chancellor,  and  filed  by  the  register,  and  the  term 
has  elapsed  during  which  it  was  made. 

APPEAL  from  the  Court  of  Chancery.  On  the  14th  of  June, 
1823,  the  appellants  filed  their  bill  against  the  appellee,  upon 
which  an  injunction  and  subpoena  issued,  and  were  served  to  Sep- 
tember term,  1823,  when  the  defendant  not  appearing,  an 
attachment  issued  against  him,  and  pe  was  returned  attached  to 
December  term,  1823.  The  attachment  was  renewed,  and 
the  defendant  was  returned  attached  to  March  term,  1824.  On 
the  30th  of  March,  1824,  an  order  was  passed  to  take  the  bill 
pro  confesso,  fyc.  A  service  of  this  order  on  the  defendant,  was 
proved  on  the  1st  of  May,  1824.  At  March  term,  1825,  com- 
missions issued  to  take  testimony,  which  were  returned  to  July 
term,  1825.  On  the  4th  of  August,  1825,  the  case  was  referred 
to  the  auditor,  who  on  the  same  day  made  his  report,  when  the 
Chancellor  decreed  accordingly.  On  the  25th  of  September, 
the  complainants  petitioned  for  a  writ  of  fieri  facias,  to  levy  the 
VOL.  I.— 50 


31)1          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  ft  d.  vi.  Scott.— 1828. 

amount  of  the  sum  of  money  decreed  to  be  paid  to  them  by  the 
defendant,  which  was  thereupon  ordered,  and  issued  returna- 
ble to  September  term,  1825.     It  \vas  renewed  to  December 
term,  1 825.     Afterwards,  and  at  the  same  term  ( December 
1825,)  the  defendant,  with  Berry,  Gittings  and  others,  filed  in 
the  said  cause  a  bill,  (stated  in  the  record  to  be  a  bill  of  review,) 
reciting  the  substance  of  the  bill  of  the  complainants  of  the 
14th  of  July,  1823,  and  the  proceedings  thereon,  and  certain 
proceedings  in  the  Orphan's  Court  in  the  District  of  Columbia, 
and  in  Montgomery  County,    and    in  the  Court  of  Appeals, 
between  the  intestate  of  the  complainants  and  the  intestate  of 
the  defendant  in  their  respective  lives,  and  between  the  intestate 
of  the  complainants  and  the  defendant  (see  6  Harr.  $•  Johns.  67,) 
and  certain  proceedings  of  the  defendant  as  administrator  of  K. 
Gittings,  his  intestate,  in  the  course  of  which  proceedings,  the 
defendant,  after  being  served  with  the  injunction  and  subpcena  in 
this  case,  (which  was  before  September,  1823,)  "lost  no  time 
to  apply  to  his  counsel,  W.  Jones,  Esquire,  to  draw  his  an- 
swer, and  pursue  the  necessary  steps  to  determine  the  contro- 
versy  speedily  and  finally ;  but  that  owing  to  the  residence 
of  the  counsel  out  of  the  State,  his  not  being  a  regular  practi- 
tioner of  the  court,  and  his  various  professional  avocations,  the 
said  Scott  was  frequently  and  contrary  to  his  anticipations  and 
expectations,  disappointed  in  having  the  business  put  in  train 
for  a  decision.   That  he  at  length  became  so  anxious  and  uneasy 
on  the  subject,  that  hearing  of  his  said  counsel  being  in  atten- 
dance at  the  Court  of  Appeals  in  Annapolis,  at  the  June  term, 
1824,  lie  came  from  his  home  in  Montgomery  County  to  Anna- 
polis, for  the  express  purpose  of  having  an  interview  with  him, 
and  getting  the  answer  drawn  and  filed.     That  he  found  his 
counsel  on  the  eve  of  returning  to  Washington,  whither  he  ac- 
companied him,  and  immediately  on  their  arrival,  the   answer 
was  drawn  and  regularly  sworn  to,  and  put  into  the  hands  of 
his  counsel  to  be  transmitted  by  the  stage  next   morning  to  the 
register  of  the  court.     That  said  Scott   had  frequently  inter- 
views afterwards  with   his  counsel  on  the  subject,  and  he,  as 
well  as  his  counsel,  took  it  for  granted  the  answer  and  exhibit 


OF  MARYLAND.  395 


Burch,  et  al.  vs.  Scott.— 1829. 


had  been  duly  received;  and  he  was  informed  by  his  counsel, 
that  he  had  made  an  arrangement  with  Mr.  Key,  one  of  the  oppo- 
site counsel,  who  resided  in  Georgetown,  to  fix  upon  some  day 
convenient  for  them  both  to  go  to  Annapolis,  and  argue  the 
cause.  And  that  said  Scott  remained  under  this  impression 
without  the  slightest  intimation  of  the  answer's  having  miscar- 
ried, until  he  found  that  there  had  been  a  decree  against  him, 
followed  by  execution.  And  when  he  communicated  to  his  coun- 
sel the  facts  of  his  property  having  been  seized  by  the  sheriff, 
he  was  utterly  at  a  loss  to  comprehend  how  it  could  have  been 
brought  about;  having  only  heard  a  short  time  before  of  the  mis- 
carriage of  the  answer,  and  not  dreaming  that  theie  could  have 
been  a  decree,  till  writing  to  the  register  of  the  court  for  in- 
formation, he  was  certified  of  the  fact."  These  complainants 
then  by  their  bill  complain,  that  the  decree  had  been  obtained 
by  surprise  and  fraud  on  the  part  of  the  complainants  therein, 
(the  appellants)  and  contrary  to  their  own  knowledge  of  right  and 
conscience;  that  the  complainants,  the  Gittings^s,  are  the  chil- 
dren and  distributees  of  Kinsey  Gittings,  on  whose  estate  the 
complainant  Scott  administered;  that  Scott  is  only  a  trustee, 
and  they  the  parties  really  interested,  and  ought  to  have 
been  made  parties  by  the  appellants  in  their  bill;  that  the 
decree  is  altogether  fraudulent  both  against  Scott  and  the 
Gittings^s ;  inasmuch  as  by  fraud  and  concealment,  the  ap- 
pellants obtained  a  decree  for  more  than  was  due,  (if  ever 
any  thing  was  due,)  having  concealed  sett  o(Ps  and  deductions 
which  they  had  always  admitted; /and  as  against  Scott,  by  like 
fraud  and  concealment,  have  charged  him  with  a  sum  exceed- 
ing what  he  had  received  and  was  accountable  for.  That 
Scotfs  said  answer,  which  by  some  unforeseen  and.  inevitable 
accident  had  miscarried  as  aforesaid,  presented  a  just  and  sub- 
stantial defence,  and  that  the  miscarriage  and  loss  of  said  an- 
swer has  been  discovered  and  known  to  Scott  since  the  said  de- 
cree, and  not  before,  and  the  other  complainants  were  totally 
ignorant  that  Scott  had  failed  to  put  in  his  answer.  The  bill 
then  objects  to  the  order  and  proceedings  of  the  Chancellor,  and 
the  returns  and  proceedings  of  the  commissioners,  and  states 


396          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al.  vs.  Scott — 1829. 

certain  errors  therein  for  which  Scott  has  brought  this  his  bill, 
in  the  nature  of  a  bill  of  review,  to  review,  revise,  &c.  and 
prays  for  himself  and  the  other  complainants,  that  the  said  de- 
cree and  proceedings  may  be  reviewed  and  reversed,  and  that 
the  appellants  may  answer  the  premises;  and  that  Scott  may  be 
allowed  to  put  in  his  original  answer,  plea,  &c.  to  said  original 
bill,  and  the  other  complainants  allowed  as  well  as  Scott  to  ap- 
pear to  the  said  bill,  and  answer  and  defend  the  same  upon  the 
original  merits,  unprejudiced  by  said  decree;  that  the  said  cause 
may  be  heard  upon  all  and  singular  the  allegations,  matters  and 
things,  in  this  their  supplemental  bill  in  the  nature  of  a  bill  of 
review  alleged  and  maintained,  at  the  same  time  that  it  is  re- 
heard upon  the  said  original  bill;  that  the  complainants  may  be 
restored  to  their  original  situation  before  the  decree;  that  the 
said  decree  may  be  opened  for  such  rehearing ;  that  the  execu- 
tion thereof  may  be  suspended,  and  the  writ  of  fieri  facias  coun- 
termanded; and  praying  publication  against  the  defendants 
therein,  &c.  Accompanying  this  bill  was  an  affidavit  from  the 
counsel,  J\lr.  Jones,  stating  the  drawing  of  the  answer  in  Wash- 
ington with  a  plea  in  the  bar  and  a  demurrer  to  the  equity  of  the 
original  bill  which  was  sworn  to  and  returned  to  him  to  be  trans- 
mitted to  the  register  in  Chancery  ;  that  finding  the  package  so 
large  as  to  make  the  transmission  of  it  by  the  mail  very  expen- 
sive, he  sent  his  servant  to  the  stage  office  to  inquire  whether 
there  were  any  passengers  for  Annapolis  in  the  stage  of  the 
next  day,  who  returned  with  answer  that  he  had  found  a  gentle- 
man who  would  take  charge  of  the  package;  upon  which  he  de- 
livered it  to  his  servant,  very  securely  sealed  up  and  directed  to 
the  register  of  the  Court  of  Chancery  in  Annapolis ,  with  a  note 
requesting  him  to  file  the  answer,  and  enter  a  notice  to  dissolve 
the  injunction.  He  does  not  recollect  that  the  servant  named 
the  person  to  whom  he  delivered  the  package;  upon  questioning 
him  lately,  he  thinks  he  did  not  know  his  name,  and  has  forgot- 
ten it  if  he  did.  That  he  had  frequent  conversations  afterwards 
with  Mr.  Key  about  appointing  a  day  to  go  to  Annapolis  and  ar- 
gue the  cause,  after  he  had  informed  him  that  he  had  put  in  the 
answer.  He  rested  without  the  least  doubt  or  apprehension  of 


OF  MARYLAND  397 


Burch,  et  al.  vs.  Scott.— 1829. 


the  answer's  being  regularly  filed,  and  does  not  remember 
when  he  experienced  so  great  surprise  as  when  he  heard  of  the 
bill  and  decree. 

Upon  this  bill  and  affidavit,  the  Chancellor  by  his  order  of 
the  16th  of  November,  1825,  suspended  and  countermanded  the 
execution,  and  all  further  proceedings  under  the  decree.  At 
December  term,  1825,  Scott  filed  an  answer  to  the  appel- 
lants original  bill  against  him,  with  sundry  exhibits  of  certain 
proceedings  of  the  former  controversy,  in  the  life  of  K. 
Gittings,  in  the  Orphan's  Court  of  the  District  of  Columbia, 
which  it  is  unnecessary  to  state.  Afterwards,  at  the"  next  term 
(March,  1826)  the  appellants  appeared  and  filed  their  answers 
with  sundry  exhibits,  to  the  bill  of  Scott,  Berry,  Gittings  and 
others,  in  which  they  aver  and  state  the  justice  of  the  original 
claim,  for  which  the  decree  had  been  obtained ;  the  proceed- 
ings in  the  former  suit,  &c.  the  justness  and  fairness  of  the 
decree,  denying  the  allegations  of  the  bill,  and  refering  to  the 
proof  taken  of  Scott's  own  acknowledgments  of  the  justice  of 
the  claim  and  that  he  held  the  money  to  be  paid,  whenever  the 
cause  should  be  determined,  to  the  appellants.  The  answers 
state  the  allowance  of  certain  credits,  and  that  they  were  en- 
dorsed on  the  fieri  facias,  and  deny  the  justice  of  the  others 
claimed  by  Scott.  That  the  order  for  taking  the  bill,  pro  con- 
fesso,  was  served  on  Scott  before  the  20th  of  June,  1824. 
They  admit  that  their  counsel  was  informed,  that  Scott's  answer 
was  filed ;  and  that  they  are  informed  and  believe,  their  said 
counsel  thereupon  wrote  to  Annapolis  for  a  copy  of  it,  and  was 
informed  that  none  was  filed,  which  information  he  shortly  after- 
wards communicated  to  Mr.  Jones.  They  charge,  that  the 
same  fact  was  again,  afterwards,  communicated  to  Mr.  Jones, 
after  a  considerable  interval,  and  they  believe  was  also  commu- 
nicated to  Scott.  They  expressly  charge,  and  state  they  are 
prepared  to  prove  that  Scott  had  such  information  before  the 
decree.  They  deny  all  fraud  in  obtaining  the  decree,  and  deny 
that  there  ought  to  have  been  any  surprize  on  the  part  of  Scott, 
who  is  charged  as  desirous  to  delay  his  answer,  as  long  as  he 
safely  could. 


398          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al.  vs.  Scott.— 1829. 

Afterwards,  at  the  same  term,  (March,  1826,)  the  appellants 
filed  theft  petition,  praying  the  Chancellor  to  revoke  his  order  of 
suspension  of  the  16th  of  November,  1825.  And  on  a  rule  to 
show  cause  on  the  25th  of  July,  1826,  the  Chancellor  passed 
the  following  order. 

BLANJ>,  Chancellor,  (July  term,  1826.)  This  case  standing 
ready  for  hearing  on  the  notice  given  in  pursuance  of  the  order 
of  the  4th  of  May  last,  to  show  cause  why  the  order  of  the 
16th  of  November  last,  should  not  be  dissolved  and  revoked, 
the  counsel  of  both  parties  were  heard  and  the  proceedings 
read  and  considered. 

The  Chancellor  feels  every  disposition  to  relieve  this  case 
from  all  embarrassing  forms,  and  to  reach  its  merits  if  practica- 
ble. It  will,  therefore,  be  necessary  to  disengage  the  complain- 
ants substantial  equity  and  object,  from  the  forms  with  which 
they  have  been  clothed;  and  to  examine  their  bill  with  a  due 
regard  to  their  equity  and  object.  The  substance  of  their  com- 
plaint is,  that  a  decree  has  been  obtained  against  some,  which 
materially  affects  all  of  them,  erroneously — by  fraud — by  sur- 
prise; or,  to  say  the  least,  improperly  and  to  the  exclusion  of  a 
good  and  available  defence.  And  upon  the  truth  of  these  alle- 
gations they  ground  their  equity  to  have  the  decree  of  the  4th  of 
August  last  set  aside — their  defence  let  in,  and  the  matters  in 
controversy  heard  upon  the  merits.  This  is  the  object,  and  the 
mode  chosen  by  them  to  attain  it  is,  by  what  they  call  c'a  sup- 
plemental bill  in  the  nature  of  a  bill  of  review."  Whatever  may 
be  the  cause  of  complaint,  the  party  asking  relief  must  conform, 
at  least  in  substance,  to  prescribed  rules  as  to  time  and  manner. 

It  has  been  the  long  established  usage  and  law  of  the  Court 
of  Chancery  to  consider  all  its  orders,  and  decrees,  as  complete- 
ly within  its  control,  and  open  to  be  altered,  revised  or  revoked, 
during  the  whole  term  at  which  they  are  passed,  on  motion  or 
by  petition.  But,  if  the  term  is  suffered  to  elapse,  the  party 
can  only  obtain  relief  by  bill  of  review.  This  law  of  this  court 
is  analogous  to  that  which  has  been  adopted  by  the  courts  of 
common  law;  and  which  has  been  found  alike  salutary  in  both. 
It  is  believed  there  is  no  decision  of  the  Court  of  Appeals  which 


OF  MARYLAND.  399 


Burch,  et  al.  vs.  Scott. — 1829. 


has  directly  or  distinctly  restricted  or  altered  this  rule  of  the 
Court  of  Chancery.  But  in  this  case  the  bill  of  these  plaintiffs 
was  not  filed  until  long  after  the  close  of  the  term  at  which  the 
decree  was  signed.  It  cannot,  therefore,  be  considered  as  enti- 
tled to  the  same  indulgence,  or  as  standing  altogether  on  the 
footing  of  a  petition  for  a  rehearing,  or  alteration,  or  opening  of 
a  decree,  filed  during  the  term  at  which  the  decree  was  signed. 

This  bill  charges,  that  the  decree  of  the  4th  of  August  last 
was  obtained  by  fraud.  It  is  the  peculiar  province  of  this  court 
to  grant  relief  in  all  cases  against  fraud  and  accident,  not  with- 
in reach  of  the  courts  of  common  law.  And  there  can  be  no 
case,  of  that  description,  in  which  it  would  be  more  fit  and  pro- 
per for  it  to  interfere  than  upon  a  charge,  that  its  own  decree 
had  been  obtained  by  fraud.  Such  a  case  is,  however,  brought 
before  the  court,  not  by  a  bill  of  review,  but  by  an  original  bill. 
And  in  that  light,  the  allegations  of  this  bill  require  the  court,  in 
some  respects,  to  consider  it. 

In  the  Court  of  Chancery  of  England,  the  Chancellor,  it 
seems,  after  the  hearing,  pronounces  the  substance  of  his  decree 
orally,  minutes  of  which  are  taken  down  by  the  register,  who 
afterwards  draws  them  out  into  the  form  of  a  decretal  order; 
and,  if  in  doing  so,  any  mistake,  should  occur,  the  execution  of 
the  order  may  be  stayed  a  while;  until  it  can  be  corrected  by 
motion  in  court.  As  thus  drawn  up,  this  judgment  of  the  court 
is  always  called  its  "decretal  order."  But  it  has  the  force  only 
of  an  interlocutory  order;  and  is  not  a  perfect,  complete,  and 
final  decree  before  enrollment;  for/till  then  the  Chancellor  may 
rehear,  alter,  or  reverse  it.  The/ proper  officer  draws  up  the 
form  of  the  decree  of  enrollment,  from  the  decretal  order,  reci- 
ting all  the  pleadings,  &c.  after  which  a  fair  copy  is  made  upon 
parchment  and  signed  by  the  Chancellor.  It  is  then,  and  not 
until  then,  an  enrolled  and  final  decree.  The  interval  of  time 
suffered  to  elapse  between  the  making  of  the  decretal  order, 
and  the  enrollment,  is  seldom  less  than  a  month,  often  more,  and 
in  some  cases  exceeds  a  whole  year.  But  in  this  interval  the 
decretal  order  is  so  far  considered  as  a  final  decree  that  it  may 
be  enforced  by  attachment. 


400          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al.  vs.  Scott.— 1829. 

The  Court  of  Appeals  of  this  State  have  declared,  that  the  de- 
cree of  the  Chancellor  is  subject  to  his  control,  only  upon  a  bill 
of  review,  or  a  bill  in  the  nature  of  a  bill  of  review.  A  bill  of 
review  lies  after  the  decree  is  signed  and  enrolled.  A  bill  in 
the  nature  of  a  bill  of  review  lies  after  the  decree  is  made,  but 
before  enrollment.  A  decree  must  be  considered  as  enrolkd,  after 
it  is  signed  by  thv  Chancellor  and  filed  by  the  register.  But  the 
Chancellor  rarel$;  if  ever,  pronounces  his  decree  orally,  as  in 
England,  or  if  he  does  do  so  in  any  case,  no  minutes  of  it  are 
taken  down.  He  is  considered  as  having  pronounced  no  judg- 
ment; nor  as  having  made  any  decision  in  the  cause  until  a  de- 
cree is  drawn  up  in  writing,  in  full  and  proper  form  and  signed 
by  him.  That  decretal  order,  which,  in  England,  always  pre- 
cedes the  enrolled  or  final  decree  is  never  made  here,  and  is  un- 
known to  our  practice.  But  in  England  the  phrase  "  decretal 
order,"  is  often  applied  to  various  other  orders  beside  that  which 
immediately  precedes  the  decree;  and  it  is  sometimes  applied  in 
the  same  sense  here. 

The  plaintiffs  have  stiled  this  bill,  "their  supplemental  bill  in 
the  nature  of  a  bill  of  review."  But,  one  of  them  was  the  de- 
fendant, and  the  others  were  no  parties  to  the  original  bill;  and 
it  is  attached,  as  an  addition,  to  no  other  bill;  nor  does  it  purport 
to  supply  the  defects  of  any  original  bill.  It  is,  therefore,  in  no 
sense  a  supplemental  bill. 

In  England,  a  bill  of  review  can  only  come  in  after  the  decree 
has  been  perfected  and  enrolled.  But  if  the  party  discover  any 
error,  or  new  matter  of  fact  after  the  decree  has  been  pronounc- 
ed, and  before  it  has  been  enrolled,  he  may  obtain  relief  by  a 
bill  in  the  nature  of  a  bill  of  review;  and  need  not  wait  or  go  to 
the  expense  of  having  the  decree  enrolled.  Now,  from  what 
the  Court  of  Appeals  have  said,  as  we  have  seen,  it  clearly 
follows,  that  in  this  State,  there  can  be  no  such  thing  as  a  bill  in 
the  nature  of  a  bill  of  review:  Since  all  decrees  here  are  made  by 
being  signed  and  filed;  and  when  so  made  are  to  be  considered 
as  decrees  enrolled.  Most  clearly  such  a  bill  cannot  be  resort- 
ed to  in  this  case. 


OF  MARYLAND.  401 


Burch,  et  al  vs.  Scott — 1829. 


A  bill  of  review,  properly  so  called,  lies  against  those  who 
were  parties  to  the  original  bill,  and  against  them  only;  and  must 
be  either  for  error  apparent  on  the  face  of  the  decree,  or  for 
some  new  matter.  But,  before  a  bill  of  review  for  newly  discover- 
ed matter  can  be  filed,  the  party  must  petition  for  leave  to  do  so: 
setting  forth  the  new  matter,  strongly  sustaining  his  statement 
by  affidavits;  upon  which  the  leave  of  the  court  is  granted.  In 
this  case  there  has  been  no  petition  setting  forth  newly  discov- 
ered matter,  nor  any  leave  given  to  file  such  a  bill.  This  bill, 
therefore,  can,  in  no  respect  whatever,  be  considered  as  a  bill 
of  review  grounded  on  the  discovery  of  new  matter. 

A  bill  of  review  for  error  apparent  on  the  face  of  the  decree 
may  be  filed  without  asking  or  obtaining  the  leave  of  the  court; 
and  it  may  be  brought  by  either  of  the  parties  to  the  original 
bill  alone;  or  it  may  be  filed  by  a  person  not  a  party  to  the  ori- 
ginal decree,  but  whose  rights  are  injured  by  it.  Such  is  the 
case  now  before  this  court.  The  bill  of  these  plaintiffs  has  this 
character,  and  more. 

This  bill  has  yet  another  aspect.  It  alleges,  that  the  plaintiffs, 
one  of  whom  was  a  party  to  the  original  suit,  had  a  good  and 
available  defence;  that  all  of  them  should  have  been  made  par- 
ties; that  they  have,  all  of  them,  an  interest  which  they  will  be 
able  to  maintain  and  prove;  and  that  the  decree  of  the  4th  of 
August  last  was  obtained  by  surprise,  or  owing  to  a  kind  of 
negligence  for  which  they  are  not  at  all  blamable,  or  for  which 
they  may,  at  least,  be  excused.  Upon  these  grounds  they  pray 
to  have  the  decree  opened  and  the/^ause  reheard.  According 
to  the  English  authorities,  if  the  enrollment  of  a  decree  be  ob- 
tained'by  surprise  or  irregularity,  it  may  be  opened;  provided, 
the  application  be  made  within  reasonable  time.  And  where 
the  merits  of  the  case  had  not  been  entered  into,  an  enrolled 
decree  has  been  set  aside,  upon  the  special  circumstances,  not- 
withstanding the  proceedings  were  strictly  regular.  For  a 
court  of  justice  will  make  every  effort,  when  in  its  power,  to 
reach  the  merits  of  the  case,  and  have  justice  done. 

This  bill,  then,  divested  of  all  extraneous  matter  may  be  re- 
garded in  three  distinct  characters.  First,a.s  an  original  bill  to 
VOL.  I.— 51 


40*         CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  at.  vs.  Scott — 1829. 

have  the  decree  of  the  4th  of  August  last  reversed  on  the  ground 
of  fraud.  Secondly,  as  a  bill  of  review  for  error  apparent  on  the 
face  of  the  decree,  and  because  it  injuriously  affects  the  interests 
of  some  of  the  complainants  who  were  not  parties  to  it;  and 
Thirdly,  as  a  bill,  grounded  on  the  peculiar  circumstances,  ask- 
ing to  have  the  decree  by  default  set  aside,  and  the  case  reheard 
upon  the  merits. 

It  was  in  these  characters,  that  it  presented  itself  to  the  mind 
of  the  Chancellor  when  it  was  first  laid  before  him.  He  then 
felt,  as  he  still  does,  a  strong  impression,  that  these  characters 
were  so  entirely  incompatible,  as  to  be  incapable  of  being 
blended  together  in  the  same  bill;  but  he  conceived,  that  if  it 
could  be  sustained  in  all,  or  any  of  them,  the  parties  complain- 
ing would  be  entitled  to  relief.  And  under  this  impression  it 
seemed  to  him  fit  and  proper  to  suspend,  at  least  for  a  season, 
the  execution  of  the  decree,  until  those  matters  could  be  more 
carefully  canvassed,  and  both  parties  could  be  heard.  And 
therefore  it  was,  that  he  passed  the  order  of  the  16th  of  Novem- 
ber last;  which  operated  as  an  injunction,  and  was  intended  so 
to  operate. 

But,  in  the  course  of  the  argument,  the  one  party  seemed  to 
construe  this  order  as  a  total  revocation  of  the  decree  of  the  4th 
of  August  last;  and  the  other,  as  a  mere  stay  of  execution,  be- 
cause of  some  credits  not  having  been  given.  It  was  also  urged, 
that  the  allowing  of  such  a  bill  of  review  to  be  filed,  did  of  itself 
operate  as  a  suspension  of  all  further  proceedings,  until  the  final 
hearing;  and  that  it  must  be  so  understood,  when  taken  in  con- 
nexion with  the  prayer  of  the  bill,  and  the  circumstance  of  a 
bond  having  been  required  and  accepted.  The  Chancellor  has 
been  misunderstood. 

According  to  the  English  law,  neither  the  filing  of  a  petition 
for  rehearing;  nor  a  bill  in  the  nature  of  a  bill  of  review,  nor 
a  bill  of  review  for  error  apparent  on  the  face  of  the  decree; 
nor  a  bill  of  review  for  new  matter  after  leave  given;  nor  an 
original  bill  to  set  aside  a  decree  on  the  ground  of  fraud;  nor  a 
bill  to  open  an  enrolled  decree  and  let  in  the  merits,  has  ever 
or  under  any  circumstances  been  considered,  m  iiself,  as  a  sus- 


OF  MARYLAND.  403 


Burch,  et  al.  vs.  Scott — 1828. 


pension  of  the  execution  of  a  decree.  The  party  having  the 
decree,  in  all  such  cases,  is  allowed  to  proceed,  unless  specially 
and  expressly  restrained;  which  is  never  done  but  on  the  sum 
decreed  being  brought  into  court,  or  on  good  security  being 
given.  Similar  law  and  practice  has  been  long  established  here  ; 
and,  hence  it  was,  that  the  Chancellor  required  a  bond  with  ap- 
proved security  to  be  filed,  before  he  imposed  the  restriction  or 
injunction,  expressed  in  the  order  of  the  16th  of  November  last. 

If,  on  considering  this  bill  in  its  third  character,  there  should 
be  found  sufficient  cause  for  opening  the  decree,  and  having  the 
case  reheard  upon  its  merits,  it  will  be  most  advantageous  to  all 
parties,  that  it  should  be  done :  and  it  will  be  unnecessary  to  in- 
quire, and  express  an  opinion,  whether  the  three  characters  of 
this  bill  are  not  incompatible  ;  particularly  as  no  objection  to  it 
has  been  made  on  that  ground ;  or  whether  the  decree  has 
been  obtained  by  fraud  or  not;  or  is  erroneous  upon  its  face. 
The  decree  of  the  4th  of  August  last,  now  complained  of,  was 
obtained  in  that  suit  by  the  default  of  the  defendant  in  not  filing 
his  answer  within  the  time  prescribed  by  the  rules  of  the  court. 
This  apparent  negligence,  the  present  plaintiffs,  by  their  bill, 
have  endeavoured  to  account  for — to  justify,  or  to  excuse.  And 
whether  they  have  done  so  or  not,  is  the  matter  now  to  be  as- 
certained ;  if  they  have,  this  decree  must  be  opened. 

The  decree  was  signed  as  of  July  term ;  and,  as  has  been 
observed  before,  all  decrees  and  orders  of  the  court  being  held 
entirely  subject  to  its  control  during  the  term,  if  an  answer  had 
come  in  at  any  time,  previous  to  the  close  of  that  term,  the  de- 
cree bj  default  would  have  been/set  aside,  and  the  defence  let 
in.  No  decree  by  default,  under  the  rule,  will  be.  signed  until 
after  the  first  four  days  of  the  term ;  but  after  that  an  answer 
may  be  filed,  and  the  decree  rescinded,  at  any  time  during 
the  term.  On  turning  to  the  proceedings  in  the  original  case, 
it  appears,  that  there  had  been  a  return  against  Scott,  the  de- 
fendant, attached  for  not  appearing ;  in  consequence  of  which, 
on  the  30th  of  March,  1824,  the  usual  order  nisi  was  pas- 
sed, requiring  him  to  appear  and  answer  by  the  4th  day 
of  the  next  July  term,  which  commenced  on  the  13th,  and 


404  CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al.  rs.  Scott.— 1829. 

closed  on  the  24th  of  the  same  month.  Therefore,  at  any  time 
after  the  17th  of  July,  1824,  the  parties  might  have  obtained 
the  decree  which  was  signed  on  the  4th  of  August,  1825. 

That  they  did  not  obtain  it  sooner  can  only  be  imputed  to 
their  own  misunderstanding,  negligence,  or  indulgence;  because, 
the  court,  on  application,  would  have  inspected  the  proceedings, 
and  have  done  on  the  next  day,  after  that  day,  precisely  that 
which  it  did,  when  called  upon  one  year  after.  The  plaintiffs 
in  that  case  then,  owing  to  their  own  negligence  or  indul- 
gence, stood  in  no  better  situation  at  the  July  term,  1825, 
than  they  did  at  the  July  term,  1824;  because,  their  decree 
by  default,  according  to  the  established  practice,  was  liable 
to  be  corrected  or  revoked  during  the  term  at  which  it  was 
signed.  The  July  term,  1825,  commenced  on  the  12th  of  that 
month,  and  was  not  finally  closed  until  the  17th  of  August  fol- 
lowing. Consequently,  the  decree  was  not  final  and  absolute 
until  that  day.  After  which  it  could  only  be  opened  or  affect- 
ed by  an  original  bill,  or  a  bill  of  review.  The  bill  to  set  aside 
this  decree  was  not  filed  until  the  15th  of  November,  1825; 
and  Scott,  one  of  the  plaintiffs  here,  was  not  charged,  on  the 
record  of  the  original  case,  with  a  default,  which  might  have 
been  fixed  upon  him  by  a  decree,  until  the  18th  of  July,  1824, 
making  a  space  of  about  fifteen  months  of  apparent  negligence, 
which  is  to  be  accounted  for,  justified,  or  excused.  To  find 
which,  we  must  examine  the  bill  and  answer  in  this  case. 

That  the  defendant  Scott,  in  the  month  of  July,  1824,  and 
before  he  could  have  been  finally  fixed  with  a  decree  by  de- 
fault, had  made  an  answer,  which  was  ready  to  be  put  on  file; 
that  he  had  charged  his  solicitor  with  the  care  of  it;  who  had 
attempted  to  forward  it  to  the  register,  to  be  put  on  file,  are  facts 
proven  and  not  denied.  It  also  appears,  that  under  a  firm 
belief,  that  his  answer  had  reached  its  destination,  and  was  on 
file,  his  solicitor  proposed  to  the  solicitor  of  the  plaintiffs  to  agree 
upon  some  day  when  the  cause  should  be  argued  by  them.  The 
defendant,  in  this  case,  Thomas  Burch,  in  his  answer,  states,  that 
thereupon  his  conusel  wrote  for  a  copy  of  Scott's  answer,  and 
was  informed,  that  it  had  not  been  filed;  which  information  was 


OF  MARYLAND.  405 


Burch,  et  al.  vs.  Scott — 1829. 


shortly  afterwards  communicated  to  Scott's  counsel,  which  after 
a  considerable  interval  was  again  mentioned  to  him.  And  it  is 
expressly  charged,  that  Scott  himself,  knew  the  fact  before  the 
decree  was  signed.  That  Scott's  solicitor  was  very  negligent  is 
most  manifest.  But  it  does  not  clearly  appear,  that  Scott  him- 
self, is  chargeable  with  negligence  to  a  greater  extent  than 
about  four  or  five  months;  for  it  is  not  said  by  Burch  in  his  an- 
swer, how  long  it  was,  before  the  date  of  the  decree,  that  Scott 
was  informed  his  answer  had  not  been  filed;  but  it  would  seem, 
that  the  counsel  of  the  plaintiffs  in  that  case,  to  be  assured  of  the 
fact  whether  Scot?s  answer  was  filed  or  not,  inquired  for  it,  and 
searched  the  papers  so  late  as  about  the  1st  of  July,  1825. 

It  is  admitted  by  the  defendants  in  this  case,  that  the  decree 
of  the  4th  of  August  last  is  for  a  greater  amount  than  it  ought  to 
have  been  given  for;  in  this  respect,  therefore,  it  confessedly 
requires  revision  and  correction.  It  is  a  decree  by  default,  and 
not  upon  the  merits.  But  Scott  avers  upon  oath,  that  he  has  a 
good  defence  against  the  whole  claim  of  the  defendants,  which 
he  prays  to  have  let  in.  And  it  is  not  alleged  by  his  opponents, 
that  they  have  lost,  or  been  deprived  of  any  means  of  sustaining 
their  pretensions.  In  short,  under  all  the  peculiar  circumstan- 
ces of  this  case,  it  appears  to  be  fit  and  proper,  that  the  decree 
of  the  4th  of  August  last  should  be  revoked;  but  it  must  be  up- 
on the  terms  of  paying  all  costs. — Decreed,  that  the  decree  of 
this  court  passed  and  signed  on  the  4th  of  August,  1825,  in  the 
case  wherein  Thomas  Burch,  administrator  de  bonis  non  of  Jesse 
Burch,  Fielder  Burch  and  others/are  plaintiffs,  against  William 
Scott,  together  with  all  the  proceedings  in  the  said  suit  subse- 
quent to  the  fourth  day  of  July  term,  1824,  be  revoked,  rescin- 
ded, and  annulled. — Decreed  also,  that  the  said  Scott  forthwith 
pay  unto  the  said  complainants  all  the  costs  which  they  may 
have  incurred  in  the  prosecution  of  the  said  suit  subsequent  to 
the  fourth  day  of  July  term,  1824,  to  be  taxed  by  the  register — 
Decreed  also,  that  the  answer  of  the  said  Scott,  purporting  to 
have  been  received  and  filed  on  the  7th  of  December,  1825,  in 
the  said  case,  be  allowed  to  be  filed  as  his  answer  in  the  said 
suit,  subject  to  all  legal  exceptions  thereto. 


S  THE  COURT  OF  APPEALS 


n.  ScuCL— 


to  bare  the  occitc  by 
fck 


'  -.:*:-'--   :•:---'  ::'"c    "  : --;        -r" 


OF  MARTLAJfD. 


Cn 


:•::  •'.'.-.    t::»e _•-.••:       ±  be    :>:.; 
he  Mfe  W  <fe  appdkfc  •«• 


V: 


a  hi  ofi 


Mvt»fce< 

::oi  -  ^i 


»*a 


!»• 


409          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  el  al.  vs.  Scott.— 1829. 

2.  As  to  a  decree  in  paper,  and  a  decree  enrolled.     If  the 
decree  is  enrolled,  it  may  be  reversed  by  a  bill  of  review,  or 
on  an  appeal,  or  for  new  discovered  evidence,  or  error  in  law. 
But  where  the  decree  is  in  paper  it  may  be  reviewed,  revoked, 
&c.  on  petition  for  a  rehearing,  or  by  bill  of  review,  &c.    A  de- 
cree is  never  enrolled  until  the  suit  is  finally  disposed  of.    Where 
it  is  not  enrolled  it  may  be  opened  on  motion.     TUiC  courts  now 
on  all  acca'sions  proceed  by  way  of  motion — rule  to  show  cause, 
&.C.     It  is  substituted  in  the  place  of  an  audita  querela,  and  writ 
of  error  coram  nobis.  It  has  been  the  practice  in  our  courts  to  set 
aside  a  judgment  after  the  term  has  elapsed.    Jackson  vs.  Union 
Bank  of  Maryland,  6  Harr.Sf  Johns.  151,  152  (note.)     Gover, 
et  al.  lessee  vs.  Cooky,  I  Harr.  &f  Gill,  7.     It  is  not  the  expira- 
tion of  the  term,  but  the  enrollment  of  the  decree.     When  is  the 
decree  made  an  unalterable  record  ?     So  long  as  the  enrollment 
of  the  decree  is  suspended,  it  may  be  re-examined.     What  is 
the  enrollment  of  a  decree  ?    It  is  a  record  of  the  whole  pro- 
ceedings in  the  case.    A  judgment  enrolled  is  a  record  of  the 
whole  proceedings,  and  so  also  is  the  enrollment  of  a  decree — 
not  separated  from  the  proceedings.    Newl.  Ch.  Pr.  191,  sec.  3. 
Wiser  vs.  Blackly,  2  Johns.  Ch.  Rep.  488.     If  the  decree  is  en- 
rolled at  the  end  of  the  term,  it  is  equally  so  the  moment  it  is 
filed  with  the  register.     No  other  act  is  to  be  done  at  the  end  of 
the  term  than  when  filing  the  decree.     Bennet  vs.  Winter,  2 
Johns.  Ch.  Rep.  205.    By  the  act  of  1817,  Ch.  1 1 9,  sec.  9,  no  de- 
cree, or  the  proceedings  upon  which  it  may  be  founded,  is  re- 
quired to  be  enrolled  or  recorded,  unless  it  affects  real  estate 
or  brings  it  into  question. 

3.  As  to  the  different  natures  of  bills  and  petitions  for  rehear- 
ing, &c.     Mitf.  Plead.  34,  84,  85.   2  Madd.  ch.  464,  465,  537. 
Wooster  vs.  Woodhull,  1  Johns.  Ch.  Rep.  539.     Cooper's  Plead. 
88,  99.     Ridgelyvs.  Carey,  4  Harr.Sf  McHen.  167.     Griffith 
vs.  Pennington,  in  the  late  Court  of  Appeals,  November,  1795, 
(M.  S.) 

4.  As  to  the  regularity  of  the  proceedings  previous  to  the  first 
decree.    He  referred  to  the  acts  of  1799,  Ch.  79,  and  1820,  Ch. 
161,  and  stated  that  the  proceedings  in  the  original  case  were 


OF  MARYLAND.  409 


Burch,  et  al.  vs.  Scott.— 1829. 


under  the  former,  instead  of  the  latter  act,  if  indeed  they  were 
under  either  act;  that  if  the  proceedings  were  under  the  act  of 
1799,  ch.  79,  there  was  no  authority  to  issue  a  commission  to 
one  commissioner  to  take  testimony. 

J\fagruder  in   reply.     The  defendant  in  the  original  case, 
was  in  contempt  for  not  appearing — no  fault  was  found  against 
him  for  not  doing  so,  it  being  optional  with  him  to  appear  or  not; 
but  not  appearing,  he  was  attached.     Still  he  did  not  appear,  so 
that  the  decree  against  him  was  regular  with  his  entire  consent. 
But  it  has  been  said,  that  the  proceedings  were  not  warranted 
by  the  acts  of  1799,  ch.  79 ;  and  1820,  ch.  161.     This  court  is 
not  now  sitting  on  an  appeal  from  that  irregularity,  if  any.     If 
the  defendant  in  that  case  was  aggrieved  by  the  decree,  he 
should  have  appealed  from  it.     This  he  did  not  chose  to  do. 
The  act  of  1820,  ch.  161,  was  intended  to  expedite  suits  iu  the 
Court  of  Chancery,  and  to  prevent  delays  therein.     There  can 
be  no  bill  of  review,  where  the  party  asking  for  the  review,  has 
never  appeared  in  court.     Cooper's  Plead.  88,  90.     Where  a 
bill  of  review  is  allowed,  the  party  filing  it  must  have  first  com- 
plied  with  the  decree.      Williams  vs.  J\fellish,  I  Fer/ion,  117. 
Wiser  vs.  Blackly,  2  Johns,  ch.  Rep.  491.     If  the  bill  is  to  im- 
peach the  decree  for  fraud,  then  the  regular  mode  is  pointed 
out  in  Cooper's  Plead.  96 ;  but  it  is  not  such  a  decree  as  is  mqn- 
tioned  in  JMilf.  Plead.  85.     The  Chancellor  in  this  case,  does 
not  decide  that  the  bill  could  be  filed  on  the  ground  of  fraud; 
but,  he  sets  aside  the  decree,  under  the  peculiar  circumstances 
of  the  case.    Newl.  1 90,  sums  up/all  the  old  cases,  arid  there  is 
no  instance  of  a  proceeding  like  /this.     The  application  is  al- 
ways to  strike  out  the  enrollment  of  the  decree.     Wiser  vs. 
Blackly,  2  Johns,  ch.  Rep.  490.     Newl.  191.     The  case   of 
Hollingsworth  vs.  McDonald,  2  Harr.  and  Johns.  237,  settles 
the  question  when  a  decree  is  to  be  considered  as  enrolled.     In 
this  court  in  Lyles  vs.  Lyles,  6  Harr.  and  Johns.  273,  at  a  sub- 
sequent term,  a  motion  was  made  to  amend  the  judgment  of 
affirmance,  by  giving  additional  damages  by  way  of  interest,  but 
it  was  refused.     Where  the  courts  will  amend  or  strike  out  a 
judgment,  under  the  peculiar  circumstances  of  the  case,  or  the 
VOL.  I.— 52. 


410          CASES  IN  THE  COURT  OF  APPEALS 

Burcb,  tt  al.  rs.  Scott. — 18:29. 

nature  of  the  action,  he  referred  the  court  to  Jackson  rs.  Union 
Sank  of  ^Maryland,  6  Harr.  and  Johns.  151.  (note)  Cover, 
et  al.  Lessee  vs.  Cooley,  I  Harr.  and  Gill,  7.  The  Palmyra, 
12  W heat.  8.  Hudson  vs.  Guestier,  1  Crunch,  1.  Cameron  vs. 
JIcRoberts,  3  Wheat.  591.  The  original  decree  in  this  case 
was  upon  the  merits,  and  not  hy  default.  The  practice  of  our 
Court  of  Chancery  is  founded  principally  upon  our  acts  of  As- 
sembly, and  it  is  very  rarely  that  the  English  practice  is  re- 
sorted to.  Hodges  vs.  Davis,  4  Hen.  and  JMunf.  400.  There 
can  be  no  relief  in  equity,  where  it  could  have  been  obtained  at 
la\v.  Conleevs.  Cooke,  2  Harr.  and  Johns.  179.  Why  should 
the  decree  be  opened  for  the  want  of  proper  parlies?  No  per- 
son is  bound  by  a  decree  to  which  he  was  not  a  party.  If  the  de- 
fendants considered  that  all  the  proper  parties  were  not  before 
the  court,  a  bill  of  interpleader  should  have  been  filed.  Mitf. 
Plead.  47.  A  bill  of  review  may  be  brought  at  any  time  within 
twenty  years  after  the  decree.  An  appeal  from  a  decree  must  be 
made  within  nine  months  ;  and  if  the  parly  is  ever  so  much  ag- 
grieved, his  right  to  appeal,  after  the  nine  months  have  elapsed,  is 
gone.  If  the  present  bill  of  review  is  sustained,  then  the  party 
will  be  permilted  to  lay  by  for  near  twenty  years  and  then  file 
his  bill  of  review,  which,  as  in  this  case,  is  no  more  than  an  ap- 
peal from  a  decree  regularly  passed  in  the  case. 

Jones  for  the  appellee,  (with  the  leave  of  the  court)  in  an- 
swer to  some  points  suggested  by  the  counsel  of  the  appellants 
in  reply,  and  not  adverted  to  in  the  opening.  1.  It  has  been  ob- 
jected by  the  appellants  counsel,  that  before  the  allowance  of 
this  bill  as  a  bill  of  review,  or  in  nature  of  a  bill  of  review,  the 
decree  should  have  been  actually  complied  with,  by  payment  of 
the  money  decreed,  or  bringing  it  into  courl;  or  else  a  compliance 
excused  by  swearing  to  his  inability,  want  of  assets,  &c.  An- 
swer, 1 .  This  is  prescribed  by  no  positive  rule  of  law,  but  de- 
pends upon  the  discretion  of  the  Chancellor,  or  the  rules  of  prac- 
tice established  in  the  court,  at  the  discretion  of  the  Chancellor. 
In  the  English  Chancery  the  rules  of  court,  atone  time,  requir- 
ed a  preliminary  performance  of  the  decree,  even  to  the  pay- 
ment of  money,  if  the  decree  were  merely  pecuniary.  Now 


OF  MARYLAND.  411 


Burch,  etal.  vs.  Scott.— 1829. 


the  performance  of  the  decree,  if  it  go  to  any  collateral  act,  is 
still  required;  but  if  it  go  merely  to  the  payment  of  money,  the 
practice  is  to  require  either  actual  payment,  or  security  for  the 
payment,  at  the  discretion  of  the  Chancellor.  2  Madd.  Ch.  539. 
(2d  Ed.)  where  this  alternative  of  the  payment  of  the  money  or 
giving  security  is  expressly  stated,  and  precedent  cited.  In  this 
case,  the  Chancellor,  in  the  exercise  of  a  sound  discretion,  re- 
quired security  only  for  the  payment  of  the  money,  in  case  the 
defendants  should  be  cast  at  the  final  hearing  on  the  merits;  and 
security,  approved  by  him,  has  been  given.  Jlnswer,  2.  The 
terms  to  be  imposed  upon  a  party  seeking  the  review,  are  en- 
tirely a  matter  of  discretion  with  the  Chancellor ;  there  is  no 
fixed  rule  of  law.  Great  latitude  is  allowed  in  adapting  the 
terms  to  the  circumstances  of  each  case.  Then  no  interlocuto- 
ry order  of  the  Chancellor,  in  the  exercise  of  this  discretion,  is 
examinable  on  appeal,  any  more  than  the  admission  or  refusal  of 
a  plea;  the  setting  aside  or  refusing  to  set  aside  a  judgment  by 
default,  &c.  All  of  which  are  decided  by  this  court  to  be 
without  its  cognizance  as  an  appellate  court.  Jackson  vs. 
Union  Bank  of  Maryland,  6  Harr.  and  Johns.  151  (note.)  Go- 
ver,  et  al.  Lessee  vs.  Cooley,  I  Harr.  and  Gill,  7.  Jlnswer,  2* 
A  fair  exception  to  the  rule  is  presented  in  this  case.  The  de- 
fendant was  charged  in  the  original  suit  as  administrator  of  Git- 
tings  for  property  that  came  to  his  hands  as  assets;  and  as  such, 
regularly  inventoried,  appraised  and  disposed  of;  and  he  swears 
that  a  great  part  of  it  is  uncollected ;  and  a  great  part  of  what 
he  has  collected,  has  been  forced/but  of  his  hands,  both  before 
and  since  the  decree,  by  the  creditors  of  Gitlings. 

2.  It  has  also  been  objected  by  the  appellants'  counsel,  that 
the  errors  in  the  proceedings  and  decree,  upon  the  original  bill, 
are  not  cognizable  by  this  court,  for  want  of  an  appeal  directly 
from  that  decree,  taken  by  the  original  defendant.  Jlnswer — 
But  for  errors  of  law  apparent  on  the  face  of  the  proceedings,  a 
bill  of  review  is  the  appropriate  and  specific  remedy,  and  such 
a  bill  is  just  as  admissible  in  the  Court  of  Chancery  of  this  State 
as  in  any  other,  and  is  so  recognized  in  the  practice  of  that  court, 
and  by  this  court  in  Hollingsworth  vs.  JWDonald,  2  Harr.  and 


412          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  tt  al.  vs.  Scott.— 1829. 

Johns.  237.  The  limitation,  by  statute,  of  the  time  in  which 
appeals  may  be  taken,  has  nothing  to  do  \vith  bills  of  review; 
and  can,  by  no  possibility,  be  construed  into  an  implied  aboli- 
tion of  the  practice.  The  two  remedies  are  specifically  differ- 
ent in  their  nature — the  one  calls  for  a  re-examination  of  the 
decree  upon  all  the  grounds  both  of  law  and/ac/, — the  other  of 
law  only;  and  the  views  of  policy  and  convenience  that  restrict 
the  right  of  appeal  at  large,  extend  not  to  the  modified  revision 
of  decrees  for  manifest  errors  of  law.  The  appeal  from  the 
Chancellors  order  setting  aside  the  original  decree,  necessarily 
and  directly  brings  before  this  court  the  regularity  and  legality 
of  that  decree,  and  the  proceedings  that  conducted  to  it;  for  if 
there  be  such  manifest  errors,  the  order  setting  aside  the 
decree  (no  matter  upon  what  specific  and  declared  reason  in  the 
argument  of  the  Chancellor)  is  completely  justified,  and  must  be 
affirmed. 

3.  It  has  also  been  objected,  that  it  is  no  question  on  a  bill  of 
review  whether  the  proof  be  sufficient,  but  whether  there  be 
any  error  of  law  apparent  on  the  face  of  the  proceeding;  or  in 
other  words,  that  a  bill  of  review  lies  for  manifest  error. of/ate, 
and  not  for  errors  of  fact.  This  is  admitted  without  hesitation 
or  qualification.  But  all  our  objections  to  the  decree  proceed 
upon  manifest  errors  of  law,  and  not  of  fact.  All  the  departures 
from  the  provisions  and  formula  of  the  statute  by  which  alone 
an  exparte  decree,  by  default,  can  possibly  be  justified  in  this 
case,  are  purely  matters  of  law:  for  instance,  the  issuing  of  a 
commission  without  a  previous  "interloatlory  decree"  under  the 
act  of  1820,  ch.  161 ;  the  direction  of  it  to  only  one  commission- 
er, under  the  act  of  1799,  c/i.  79;  the  mode  of  executing  the 
commission  under  either  act— involving  the  irregularities  in  the 
mode  of  swearing  or  affirming  the  witnesses,  the  want  of  their 
signatures  to  their  depositions;  and  above  all,  the  omission  of 
notice  of  the  time  and  place  of  opening  and  executing  the  com- 
mission. Not  one  of  these  irregularities  come  at  all  under  the 
description  of  errors  of  fact,  or  rest  at  all  upon  the  sufficiency  of 
proof.  The  only  point  of  evidence  at  all  connected  with  them 
is  the  admusibiiity  of  the  evidence,  not  the  deductions  of  fact 


OF  MARYLAND.  413 


Burch,  et  al.  vs.  Scott. — 1829. 


from  it;  and  its  admissibility  turns  entirely  upon  the  regularity 
and  legality  of  the  proceeding  by  which  it  is  introduced,  and 
presents  a  pure  question  of  law. 

4.  The  terms  "interlocutory  decree"  used  in  the  first  and  se- 
cond sections  of  the  act  of  1820,  c/i.  161,  are  construed  by  the 
counsel  of  the  appellants  to  mean  a  mere  interlocutory  order  for 
a  commission.  Now  this  interpretation  is  wholly  inconsistent, 
both  with  the  terms,  per  se,  and  with  the  context  of  the  act.  Ex 
vi  termini,  a  decree  is  very  different  from  a  mere  order.  When 
the  term  order  is  applied  to  any  proceeding  which  decrees  any 
relief  under  the  bill,  it  is  qualified  as  a  decretal  order,  to  distin- 
guish it  from  mere  interlocutory  orders  in  general.  A  decree  in 
a^cause,  ex  vi  termini,  imports  either  a  decree  for  relief,  or  a 
dismission  of  the  bill.  An  '•'•interlocutory  decree"  means  precise- 
ly the  same  thing;  except  that  it  is  not,  in  the  first  instance  abso- 
lute, but  depends  on  a  future  contingency  to  make  it  so;  and  is 
often  called  a  decree  nisi.  The  "  interlocutory  decree,"  here 
spoken  of,  clearly  means  a  decree  for  relief  to  be  made  absolute, 
or  to  be  vacated  on  a  future  contingency — such  as  the  ap- 
pearance and  answer,  or  the  continued  default  of  the  defendant. 
In  the  mean  time  the  commission  issues;  and  by  that  means  the 
complainant  is  enabled  to  proceed  with  the  preparation  of  his 
cause  for  a  final  hearing,  in  case  the  decree  should  be  vacated 
and  issue  joined.  In  entering  this  interlocutory  decree  for  re- 
lief, the  act  of  1820,  ch.  161,  dispensss  with  the  usual  prelimina- 
ry of  such  decrees — the  taking  the  bill  pro  confesso,  which  can 
be  done  only  on  the  terms  prescribed  by  the  second  section.  The 
sort  of  decree  here  intended  is  precisely  that  usually  passed  by 
a  court  of  equity,  upon  a  bill  taken  pro  confesso;  i.  e.  a  decree 
nisi.  This  is  still  more  clear  from  the  context;  for  in  the  first 
section  the  commission  is  made  a  progressive  and  superadded 
step  to  the  "interlocutory  decree;"  both  the  one  and  the  other 
are  to  be  done.  It  would  be  strange  if  they  were  one  and  iden- 
tical. In  the  second  section  this  same  "interlocutory  decree"  is 
still  insisted  on  as  the  preliminary  to  the  order  for  taking  the 
bill  pro  confesso.  It  would  be  still  more  strange  if  this  last  or- 
der, intended  for  the  express  purpose  of  dispensing  with  a  com- 


414          (   v^ES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al.  vs.  Scott.— 1629. 

in  ^io;>,  a:nl  all  rxlra.icous  evidence  whatever,  is,  nevertheless 
to  be  precedeil  and  accompanied  by  the  very  thing  dispensed 
with  !  The  argument  of  the  counsel  of  the  appellants,  to  show 
that  they  had  an  election  to  proceed  under  either  act  of  Assem- 
bly— that  of  1799,  c/i.  7  9,  or  1820,  c/i.  161;  the  one  be  ing  suppos- 
ed to  apply  to  cases  where  the  defendant  had  stood  out  to  anaf- 
tachme-.it,  and  the  other  to  cases  where  the  process  had  gone  no 
further  than  a  summons,  and,  therefore,  that  the  two  laws  are 
consistent,  and  each  operates  upon  its  appropriate  cases,  is  deem- 
ed to  be  clearly  untenable.  1.  If  the  two  acts  could  be  thus  con- 
strued distnbutively  as  applicable  to  these  two  descriptions 
of  cases,  each  must  operate  exclusively  upon  the  cases  respec- 
tively appropriated  to  it.  The  provisions  applicable  to  the 
case  of  a  mere  summons  could  not  be  applied  to  and  confounded 
with  a  case  where  the  party  stood  out  process  of  contempt. 
The  court  is  not  authorised  to  follow  up  these  proceedings  in- 
discriminately, in  all  cases  of  default,  but  is  expressly  authori- 
zed and  required  to  apply  the  requisite  proceeding  to  the  given 
case.  Therefore  there  cannot  be,  under  any  construction  of 
these  acts  of  Assembly,  an  election  to  pursue  the  one  or  the  other 
course — the  precise  coui-se  being  prescribed  and  limited  to  the 
specific  case.  2.  But,  the  two  acts  of  Assembly  cannot  stand 
together;  the  latter  act  virtually  supersedes  and  abrogates  the 
former.  It  is  true  it  speaks  only  of  cases  where  the  defendant 
has  failed  to  appear  or  answer  after  summons.  The  only  effect 
of  this  is  to  dispense  with  the  process  of  contempt  made  a  neces- 
sary preliminary  by  the  former  act  of  the  order  for  taking  the 
bill  pro  confesso,  or  for  a  commission.  But  no  process  of  con- 
tempt can  issue  but  upon  a  previous  default  toappearor  answer 
upon  summons — it  is  necessarily  founded  on  a  previous  summons. 
Then  when  the  last  act  comprehends  all  cases,  as  it  expressly 
does,  of  summons,  it  necessarily  comprehends  all  cases  of  attack- 
mzni — the  last,  by  no  possibility,  being  supposed  to  exist  with- 
out the  other;  and  then  the  proceeding  to  an  "interlocutory  de- 
cree" and  commission  is  not  discretionary,  but  is  required  of  the 
court,  and  becomes  an  imperative  duty,  upon  the  application  of 
the  complainant.  This  is  made  still  more  clear  by  the  second 


OF  MARYLAND.  415 


Burch,  et  al.  vs.  Scott. — 1829. 


section  of  the  act  of  1820,  c/i.  161.  By  that,  the  terms  on  which 
a  bill  may  be  taken  pro  con/esso,  are  strictly  guarded  and  limited: 
Whereas,  by  the  act  of  1799,  c/i.  79,  the  order  for  taking  the 
bill  pro  confesso  is  left  entirely  to  the  discretion  of  the  court, 
upon  the  mere  default  of  the  defendant.  3.  But  if  the  validity 
of  this  argument  were  fully  granted,  the  pretended  right  of  elec- 
tion could  avail  nothing,  since  it  is  perfectly  clear  that  the  appel- 
lants have  pursued  neither  act,  but  their  proceedings  consists  of 
an  incongruous  medley  of  both.  It  is  submitted  by  the  appellee, 
whether  the  matter  of  this  appeal  be  at  all  cognizable  by  this 
court.  It  is  an  appeal  from  a  merely  interlocutory  order,  which 
goes  no  further  than  to  set  aside  a  decree  by  default — leaving 
the  whole  merits  open  to  a  decision  at  the  final  hearing.  Noth- 
ing is  decided  between  the  parties;  but  every  possible  claim,  that 
could  be  asserted  by  the  complainants  under  their  bill,  is  fully 
reserved  to  them;  and  even  secured  to  them  by  collateral  securi- 
ty. They  can  lose  nothing  but  by  a  failure  of  merits  in  their 
claim.  This  is,  moreover,  an  interlocutory  proceeding  in  a 
matter  wholly  under  the  discretion  of  the  Chancellor.  It  is,  there- 
fore, insisted  that  this  appeal  be  dismissed,  as  well  upon  gene- 
ral principles,  as  upon  the  authority  of  the  cases  in  Jackson  vs. 
The  Union  Sank  of  Maryland ,  6  Hair,  and  Johns.  151  (note.) 
Gover,  et  al.  Lessee  vs.  Cooley,  1  Harr.  and  Gill,  7.  Snoicden 
vs.  Dorsey,  6  Harr.  and  Johns.  114.  The  principles  upon 
which  the  case  of  Thompson  vs.  M'-Kim,  6  Harr.  and  Johns. 
302,  is  to  be  distinguished,  are  too  recent  and  familiar  to  this 
court,  to  require  any  illustration/6r  remark. 

Magruder  for  the  appellants/  in  reply  to  the  last  argument  of 
the  counsel  of  the  appellee.  The  real  difficulty  in  this  case,  is 
to  ascertain  to  which  class  of  bills,  that  with  which  we  have  to 
deal,  does  belong.  It  cannot  be  as  it  has  some  times  been  cal- 
led a  cross  bill,  because  that  ex  vi-  tcrminorum  implies  a  bill 
brought  by  a  defendant  in  a  suit  against  a  plaintiff  respecting  the 
matter  in  question  in  that  bill;  and  it  is  a  weapon  of  defence,  in 
such  case.  Cooper's  Plead.  85.  It  cannot  be  sustained  as  a 
bill  to  impeach  a  decree  for  fraud,  in  obtaining  it.  Here  no 
fraud  is  admitted  or  attempted  to  be  proved,  "and  the  fraud 


416          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al  .r.i.  Scott — 1829. 

used  in  obtaining  the  decree,  bring  the  principal  point  in  issue, 
and  necessary  to  be  established  by  proof  before  the  propriety  of 
the  decree  can  be  investigated."  Coopers  Plead.  97.  In  real- 
ity it  attempts  to  partake  of  every  description  of  bill,  and  is  a 
non  dcscript.  In  the  argument  of  the  appellee's  counsel,  it  is 
evidently  designed  to  treat  it  as  a  bill  of  review,  or  in  the  na- 
ture of  a  bill  of  review'.  These  two  description  of  bills  agree 
in  all  respects,  (and  also  a  supplemental  bill  in  the  nature  of  a 
bill  of  review,  which  in  some  places  perhaps  this  bill  is  called,) 
except  that  the  one  is  the  proper  bill  to  be  filed  before,  and  the 
ether  after  the  decree  is  enrolled.  Cooper's  Plead.  88,  89.  One 
of  the  ordinances  relative  to  bills  of  this  description  is  that  "the 
decree  must  be  first  obeyed  and  performed — if  it  be  for  money, 
the  money  must  be  paid,"  &c.  Coopers  Plead.  91;  "and  where 
a  sum  of  money  is  ordered  to  be  paid,  it  is  dispensed  with,  only 
if  it  appear  that  the  party  was  unable  to  pay  it."  "And  nothing 
will  excuse  the  party  from  this  duty  but  evidence  of  his  inabili- 
ty to  pay  it."  Wiser  vs.  Blackly,  2  Johns,  cli.  Rep.  491.  "Where 
the  party  is  in  execution  under  the  decree,  and  unable  to  pay,  I 
should  rather  conclude  that  the  non  payment  of  the  money,  is 
not  an  insuperable  obstacle."  Per  Kent,  Chancellor,  in  Liv- 
ingston vs.  Hubbs,  3  Johns.  Ch.  Rep.  128.  Such  has  been  the  fix- 
ed and  invariable  law,  relative  to  the  filing  of  bills  of  this  des- 
cription, from  the  time  that  bills  of  review  were  allowed.  It  is 
said  there  is  no  "such  positive  rule  of  law."  As  well  might  it 
be  said,  that  there  is  no  positive  rule  of  law  authorising  the  Chan- 
cellor to  allow  bills  of  review  to  be  filed,  and  therefore  they 
ought  not  to  be  allowed.  It  depends  upon  the  discretion  of  the 
Chancellor.  Unde  derivatur,  that  notion?  Is  it  reasonable? 
The  propriety  of  calling  upon  an  inferior  court  to  review  its  own 
decree,  and  especially  upon  the  ground  of  error  in  law,  appar- 
ent upon  the  face  of  the  decree,  might  well  be  questioned,  unless 
the  performance  of  it,  where  money  is  required  to  be  paid,  was 
insisted  upon — the  evils  arising  from  its  exercise — the  delays 
which  it  would  occasion,  would  be  insufferable.  In  every  case, 
where  a  considerable  amount  of  money  is  directed  to  be  paid, 
and  it  was  the  wish  of  the  defendant,  as  long  as  posible  to  delay 


OF  MARYLAND.  417 


Burch,  et  al.  vs.  Scott — 1829. 


the  payment  of  it,  instead  of  taking  the  appeal  which  he  is  by 
law  authorised  to  take  to  this  court.  He  could  first  file  his  bill 
of  review,  and  only  when  that  is  disposed  of,  and  he  was  not 
permitted  to  file  a  second,  that  he  would  carry  his  case  into  the 
court  of  last  resort,  in  order  to  another  review.  Such  bills  sure- 
ly ought  not  to  be  encouraged,  and  the  rules  which  have  been 
adopted  to  prevent  the  filing  of  them  merely  for  delay  and  vex- 
ation ought  not  to  be  relaxed.  If  the  plaintiff  in  a  bill  of  review 
succeeds  in  obtaining  a  reversal  of  the  original  decree,  a  bill 
may  be  brought  to  review  the  reversal  of  the  former  decree, 
and  praying  that  the  original  decree  may  stand.  Cooper's  Plead. 
95.  If  upon  a  bill  of  review  a  decree  has  been  reversed,  another 
bill  of  review  may  be  brought  upon  the  decree  of  reversal.  Ib. 
92.  And  a  bill  of  review  has  been  permitted  (upon  new  matter 
discovered)  even  after  the  affirmance  of  the  decree  in  parlia- 
ment. Ib.  92.  There  is  and  ought  to  be  no  such  "latitude"  al- 
lowed to  the  Chancellor  "in  adapting  the  terms  to-  the  circum* 
stances  of  each  case;"  and  the  cases  referred  to  of  Jackson  vs. 
Union  Bank  of  Maryland,  6  Harr.  and  Johns.  151  (note,)  and 
Cover,  et  al.  Lessee  vs.  Cooky,  1  Harr.  and  Gill,  7,  are  not 
at  all  applicable  to  this. 

This  case  is  by  no  means  entitled  to  be  excepted  from  the 
operation  of  the  rule.  Scott  knew  the  situation  of  the  property 
when  he  administered.  He  has  been  a  witness  in  this  case  be* 
tween  Jane  Burch  and  Gittings,  and  an  important  witness,  as  ap- 
pears by  the  exhibits.  If  because  the  property  was  in  the  pos- 
session of  GUtings  at  the  time  of  his  death,  he  thought  it  right 
to  include  it  in  the  inventory,  he  /ought  to  have  known,  that  it 
was  not  responsible  for  Gittin^s  debts,  and  no  doubt  took  care 
to  save  himself  harmless.  It  appears,  moreover,  in  the  testimo* 
ny,that  when  the  injunction  was  served  upon  him  he  declared 
be  should  hold  (as  he  was  authorised  by  law  to  hold)  a  sufficient 
amount  of  the  proceeds  of  sale  to  meet  this  claim.  Some  of  the 
money  for  which  negroes  sold,  he  says  is  uncollected,  and  if 
this  be  true,  whose  fault  is  it  ?  The  sale  was  made  in  October, 
1818,  on  a  credit  of  nine  or  twelve  months.  But  what  excuse  can 
be  made  for  filing  this  (misnamed)  bill  of  review,  when  if  the  plain- 
VOL.  1— 53. 


418          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  tt  al.  vs.  Scott.— 1829. 

tiff  wished  to  have  justice  done  him,  and  the  estate  settled,  an 
appeal  to  this  court  would  have  enabled  him  to  have  had  the 
whole  matter,  not  only  the  law  of  the  case,  but  whether  there 
was  proof  to  warrant  the  decree,  examined.  The  decree  bears 
date  the  4th  of  August,  1825,  and  the  bill  is  filed  the  15th  of 
November,  1825 — less  than  four  months  afterwards.  It  will  be 
no  answer  to  say  that  if  the  money  had  been  paid  over,  and 
then  the  decree  reversed,  it-would  have  been  difficult  to  get  it 
back.  If  so  the  course  was  to  have  brought  the  money  into  the 
Court  of  Chancery,  and  prays  the  Chancellor  to  detain  it,  pend- 
ing the  appeal,  which  could  have  been  done,  if  there  were  rea- 
sonable appprehensions  of  its  being  lost.  The  plaintiff  is  evi- 
dently entitled  to  no  favour.  His  object  is  and  can  only  be  de- 
lay, and  to  keep  the  money  in  his  hand  as  long  as  it  is  possible. 
What  is  said  about  the  policy  of  permitting  bills  of  review  to 
be  filed  after  the  expiration  of  the  time  allowed  for  appeals,  we 
pass  over;  for  if  correct,  it  does  not  apply  to  this  case — an  ap- 
peal might  have  been  prayed. 

A  few  words  will  dispose  of  what  is  said  under  the  third  ob- 
jection, as  to  the  manifest  errors  of  law.  There  is  nothing  in 
these  erros.  The  decree  is  warranted  either  by  the  act  of  1799, 
ch.  79  or  1820,  ch.  161.  The  law  to  which  the  appellee's 
counsel  refers,  (1799,  ch.  79,  sec.  6,)  authorises  a  commission 
for  any  purpose  whatever  to  issue  to  one  person  only,  or  to  three 
persons,  with  power  to  any  two  with  the  consent  of  the  party 
or  parties  in  court.  There  is  an  end  then  to  the  objection  to 
these  proceedings  under  the  act  of  1799;  and  there  is  as  little 
objection  to  their  regularity  if  it  depended  altogether  on  the  act 
of  1820,  ch.  161.  By  that  act  if  the  defendant  fails  to  appear, 
upon  being  summoned,  as  is  the  case  here,  the  Chancellor,  on 
application  of  the  complainant,  is  expressly  authorised  to  issue 
a  commission  in  order  to  get  the  proof  necessary  to  entitle  the 
complainant  to  relief;  and  this  he  did.  But  he  must  pass  an  in- 
terlocutory decree.  And  what  is  an  interlocutory  decree  in 
such  a  case,  but  that  a  commission  be  issued  ?  Is  there  any 
formula  prescribed,  and  to  be  strictly  observed  ?  Must  he  at 
the  top,  or  on  the  back  of  that  order  write  "interlocutory  de- 


OF  MARYLAND.  419 


Burch,  et  al.  vs.  Scott — 1829. 


cree?"  If  this  order  be  not  a  compliance  with  the  law,  it  is 
difficult  to  imagine  what  is.  It  need  not  be  said  it  is  decreed. 
The  design  of  the  act  of  1820,  is  to  put  it  out  of  the  power  of  the 
defendant  by  refusing  to  appear  or  to  answer  when  he  ought,  to 
delay  the  complainant,  if  the  latter  be  willing  to  dispense  with 
the  admissions  which  the  answer  of  the  defendant  might  make^ 
The  remedy  is  given  only  when  the  defendant  is  in  default,  and 
the  subsequent  clause  of  the  act  (1820,  ch.  161,  sec.  3,)  affords 
to  the  defendant  every  benefit  that  he  could  desire.  There  is 
nothing  in  this  objection;  and  need  it  be  said,  as  little  in  the  ob- 
jection, the  want  of  the  witnesses'  signatures  to  the  depositions, 
nor  as  to  the  mode  of  executing  the  commissions,  (both  of  which 
happened  to  be  executed  in  the  very  best,  and  most  regular 
mode,)  nor  "above  a/Z,  the  omission  of  the  notice  of  the  time  and 
place  of  opening  and  executing  the  commission."  Notice  is 
never  to  be  given  out  of  court  to  a  party  who  will  not  appear  in 
court.  If  there  had  been  any  irregularity  in  executing  the  com- 
mission, the  defendant  ought  to  (as  he  might  have)  appeared  in 
court  and  filed  his  exceptions.  Objections  of  this  description 
are  not  allowed  at  the  hearing.  If  these  objections  could  be 
sustained  they  would  be  nothing  worth  on  this  bill  of  review; 
they  might  deprive  the  complainants  of  some  testimony,  with- 
out which,  perhaps,  they  could  not  have  obtained  a  decree  be- 
low; but  it  cannot  be  made  a  question  now,  whether  if  such  and 
such  depositions  were  out  of  the  case,  the  remainder  of  the  tes- 
timony would  entitle  the  complainants  to  a  decree.  "A  bill  of 
review  lies  for  manifest  errors  of/Taw,  not  of  /art."  JVon  con- 
stat,  that  the  Chancellor  grounded  his  decree  on  any  of  the  ex- 
ceptionable testimony.  He  too  might  have  thought  that  there 
were  some  irregularities  in  execution  of  one,  or  the  other  com- 
mission. 

What  is  said  under  the  fourth  objection,  and  especially  in 
regard  to  the  distinction  between  a  decree  in  a  cawse,  and  an  in- 
terlocutory decree,  and  decrees  nisi,  &c.  need  not  be  remarked 
on.  The  act  of  1820  manifestly  forbids  any  thing  like  a  de- 
cree nisi;  "a  decree  for  relief  to  be  made  absolute,  or  to  be  va- 
cated on  a  future  contingency." 


420         CASES  IN  THE  COURT  OF  APPEALS 

Burch,  e«  al.  rs.  Scott — 1829. 

Nor  need  it  be  examined  what  is  designed  to  prove  that  the 
latter  act  "supersedes  and  abrogates  the  former."  Much  of 
this,  it  is  presumed,  would  have  been  omitted  if  it  had  been 
known  that  under  the  act  of  1799,  as  well  as  of  1820,  a  commis- 
sion may  be  issued  to  one  person.  The  proceedings  were  war- 
ranted by  either  of  the  laws,  so  that  either  will  be  sufficient  for 
the  complainants;  and  it  is  because  this  case  was  in  a  situation 
which  authorised  them  to  proceed  under  either  law,  and  the 
proceedings  under  both,  (except  the  bill  be  taken  pro  confesso, 
under  the  act  of  1799,)  are  precisely  the  same,  that  the  learned 
counsel  on  the  other  side,  supposes  that  "their  proceeding  con- 
sists of  an  incongruous  medley  of  both." 

As  to  what  is  said  by  the  learned  counsel — whether  or  not 
this  appeal  will  lie  ?  It  need  only  be  answered  that  it  is  to  be 
taken  for  granted  that  the  appeal  will  lie,  until  this  court  reverse 
(without  mentioning  others)  their  decisions  in  Munnikuyson 
vs.  Dorsett,  2  Harr.  and  Gill,  374,  and  the  State,  use  of  Sadler's 
£xV  vs.  Cox,  Ib.  379.  Surely  if  from  such  an  order  by  a  court 
of  common  law  an  appeal  will  lie,  it  will,  from  an  order  in 
Chancery;  and  surely  too  every  thing  which  is  said  now,  might 
have  been  said,  and  was  said,  in  the  cases  here  referred  to.  If 
this  be  an  interlocutory  order,  then  the  order  of  the  court  in 
the  cases  mentioned  was  an  interlocutory  judgment  at  law,  from 
which,  it  is  well  settled,  that  no  appeal  will  He.  Again,  we  are 
now  called  upon  to  deal  with  this  as  a  bill  of  review,  or  bill  in  the 
nature  of  a  bill  of  review,  filed  to  ascertain  if  there  be  error  of 
law,  apparent  in  the  body  of  the  original  decree.  Now  whoever 
heard,  in  such  a  case,  of  such  a  decree,  as  the  decree  under 
examination  ?  In  such  a  case  the  only  decree  which  the  Chan- 
cellor can  pass  is,  that  the  original  bill  be  dismissed,  or  else  mod- 
ified, and  thereby  remove  the  errors  of  law  appearing  in  the 
body  of  the  decree.  To  let  in  answers — to  try  the  merits  of 
the  original  suit  upon  other  and  new  testimony  is  entirely  out  of 
the  question,  when  the  bill  is  a  bill  of  review  for  errors  of  law, 
appearing  on  the  face  of  the  decree,  and  which  ex  vi  termini  for" 
bids  a  re-examination  of  the  facts  of  the  decree;  even  the  inqui 
ry  whether  the  original  decree  is  warranted  by  the  testimony 


OF  MARYLAND.  421 


Burch,  et  al.  vs.  Scott.— 1829. 


already  in  the  case.  Such  suggestions  as  are  to  be  found  at  the 
close  of  the  argument  of  the  counsel  of  the  appellee,  can  never 
belong  to  a  case  of  this  description,  and  must  surely  have  been 
made  under  an  impression  that  this  bill  of  review,  though  in  its 
commencement  for  errors  of  /ate,  is  in  the  conclusion  a  bill 
"brought  upon  discovery  of  new  matter,  that  is  to  come  to  light 
after  the  decree  was  made."  Which  certainly  it  has  never  been 
pretended  that  it  was,  and  even  then  a  new  answer  is  a  thing 
unheard  of. 

The  learned  counsel  has  considered  this  case  throughout  as  a 
decree  by  default — an  absolute  decree  grounded  (if  it  had  any 
grounds)  upon  what  he  calls  an  interlocutory  decree  nisi,  and 
he  has  been  misled  by  what  he  has  read  in  the  English  chance- 
ry books  (and  perhaps  New-York  also)  of  the  law  and  practice 
there  prevailing  with  respect  to  opening  decrees  of  that  descrip- 
tion. No  such  practice  exists  in  our  Court  of  Chancery,  and  in 
truth  the  power  of  the  Court  of  Chancery  here  or  in  England  to 
open  its  decrees  because  of  error  or  irregularity  in  obtaining  them, 
is  not  greater  than  the  power  of  the  courts  of  law.  The  power  is 
recognized  to  exist  in  our  Courts  of  Equity  by  the  act  of  1787, 
ch.  9,  sec.  6.  And  this  act  shows  that  the  court  below  had  the 
same  power  to  set  aside  its  judgments  in  the  cases  before  refer- 
red to,  of  Munnikuyson  vs.  Dorsett,  and  the  State  use  of  Sadlers 
JEzY  vs.  Cox,  that  it  can  be  pretended  the  Court  of  Chancery 
had  to  meddle  with  its  decree  in  this  cause.  That  there  exis- 
ted stronger  grounds  for  interference  in  those  cases  than  in  this 
case,  cannot  possibly  be  denied.  /  In  our  Court  of  Chancery  a 
cause  is  never  disposed  of  when  under  rule  hearing,  because  of 
the  default  of  either  party  in  not  appearing  to  argue  it.  It  is 
very  different  in  England,  as  will  at  once  be  seen  by  reference 
to  their  books  of  practice; — an  example  is  given  in  Cooper'* 
Plead.  269,  (note) — a  decree  made  upon  the  default  of  the  de- 
fendant in  not  appearing  at  tlie  hearing.  A  decree  given  for 
the  plaintiff,  because  of  the  non  appearance  of  the  defendant  to 
open  and  insist  upon  his  defence,  is  a  thing  of  constant  occurence 
in  the  English  Court  of  Chancery,  (and  similar  practices  prevail 
in  their  law  courts ;)  but  their  being  no  such  practice  in  our 


422         CASES  IN  THE  COURT  OF  APPEALS 

Burch,  tt  al.  vs.  Scott — 1829. 

Court  of  Chancery,  decrees  of  that  description  and  proceedings 
in  relation  to  decrees  of  that  description,  which  so  frequently 
occur  in  England,  can  be  of  no  service  in  this  State  but  to  fur- 
nish material  for  a  speech  in  a  desperate  case.  In  England  the 
rules  of  court  which  authorise  such  a  decree,  direct  it  first  to 
be  made  nisi,  and  can  only  be  made  absolute  on  the  defendant 
failing  to  show  cause  why  it  should  not  be,  after  being  served 
with  a  writ  of  supcena  for  the  purpose.  Coopers  Plead.  269,  27. 
If  there  be  any  irregularity  in  these  proceedings;  if  the  decree 
has  been  made  absolute,  when  in  truth  the  subpoena  was  not 
served,  a  decree  founded  on  the  rules  of  court  and  subject  to 
those  rules,  will  be  open,  when  it  appears  to  have  been  taken 
in  violation  of  those  rules.  It  is  the  same  in  the  courts  of  law. 
There  is  a  rule  somewhat  like  this  in  this  court,  and  the  con- 
struction given  to  that  rule  ought  to  have  been  conclusive  with 
the  Chancellor,  and  should  have  influenced  him  to  dismiss  this 
bill,  and  to  have  revoked  his  order  which  suspended  all  proceed- 
ings ui*dcr  the  original  decree.  The  rule  alluded  to,  is  that  which 
entitles  the  appellee  to  an  affirmance  of  his  judgment  nisi,  if  the 
appellant  and  his  counsel  are  absent  when  the  court  reaches  the 
case,  and  to  an  absolute  affirmance  if  within  a  certain  number 
of  days  thereafter,  notes  are  not  filed  on  the  side  of  the  appel- 
lant. Now  suppose  this  case  had  been  in  this  court,  and  had 
been  affirmed  under  that  rule,  would  all  the  reasons  and  excuses 
suggested  in  this  bill  have  induced  the  court  to  open  the  affirm- 
ance, at  a  succeeding  term?  If  one  term  or  more  after  a  judg- 
ment is  affirmed  under  this  rule,  the  appellant  was  to  apply  for 
an  order  to  open  the  decree,  in  order  to  try  the  merits,  and 
because  the  appellee  can  "lose  nothing  but  by  a  failure  of  mer- 
its in  his  claim;"  and  he  was  by  affidavit  to  make  known  to  the 
court  that  he  had  employed  a  counsellor,  and  if  you  please,  one 
who  was  not  a  regular  practitioner  of  the  court,  and  could  not 
neglect  other  courts  and  other  business  to  attend  a  court  in 
which  he  did  not  regularly  practice,  once  had  really  thought 
his  counsellor  did  go  to  court,  and  would  be  there  when  the 
cause  was  regularly  called  up  and  never  knew  to  the  contrary, 
till  the  appeal  was  affirmed.  It  is  apprehended,  that  precisely 


OF  MARYLAND.  423 


Burch,  et  nl.  vs.  Scott.— 1829. 


that  same  answer  which  this  court  would  give  to  such  an  ap- 
plication, is  the  one  which  the  Chancellor  ought  to  have  giv- 
en to  Scott;  and  for  not  giving  it,  there  is  error  in  his  decreee, 
and  in  his  suspending  proceedings  under  the  former  decree, 
which  it  is  the  duty  of  this  court  to  correct.  Scott's  case  is  in- 
finitely worse.  He  apologizes  for  not  having  filed  an  answer — 
it  was  lost.  But  he  makes  no  sort  of  apology  for  that  of 
which  we  complain,  and  which  caused  so  much  delay  in  the 
court  below, — his  contempt  in  not  appearing  to  the  suit,  or  giv- 
ing any  attention. to  the  case  from  September  term,  1823,  when 
he  was  bound  to  appear,  until  November,  1825,  when  for  the 
first  time  he  came  into  court,  to  stay  the  proceedings. 

STEPHEN,  J.  delivered  the  opinion  of  the  Court. 

Considerable  difficulty  has  been  felt  in  coming  to  a  decision 
in  this  case,  which  involves  principles  of  practice  not  of  very  fre- 
quent occurrence,  and  which  affect  in  a  high  degree,  the  regular 
and  ordinary  administration  of  equitable  jurisprudence.  It  ap- 
pears by  the  proceedings  in  the  court  below,  and  whhh  have  been 
brought  up  here  on  appeal,  that  a  controversy  exists  as  to  the 
right  of  property  in  certain  negroes,  or  the  proceeds  for  which 
they  have  been  sold,  between  the  representatives  of  Jesse 
Burchj  and  those  of  a  certain  Kinsey  Git  tings.  To  recover 
these  proceeds  and  to  have  a  distribution  made  among  them, 
the  representatives  of  Burch  filed  their  bill  of  complaint  in  the 
Court  of  Chancery,  on  the  14th  day  of  July,  1$23,  against  fVil- 
liam  Scott,  one  of  the  appellees/  as  the  administrator  of  said 
Giltings,  in  which  bill  they  also  pray  for  an  injunction,  to  pre- 
vent Scott  from  paying  over,  or  in  any  manner  parting  with  the 
proceeds  of  sale  until  the  final  decree  of  the  court. 

The  Judge  here  referred  to  the  proceedings  in  the  Court  of 
Chancery  before  set  forth,  including^the  decree  of  the  Chancel- 
lor, and  then  continued. 

Upon  the  propriety  of  this  discision  this  court  are  now  call- 
ed upon  to  decide.  As  a  bill  of  review  to  reverse  the  decree 
of  the  Chancellor,  for  error  apparent  on  the  face  of  the  decree, 
it  cannot  be  available  for  the  complainants.  The  error  which 


121          CASES  IN  THE  COURT  OF  APPEALS 

Burch,  el  al.  vs.  Scott.— 1829. 

will  reverse  a  decree  upon  such  a  bill  must  appear  in  the  body 
of  the  decree  itself.  JVyatt  in  his  Practical  Register,  page  94, 
states  that  a  bill  of  review  is  to  examine  and  reverse  a  former 
decree  upon  error  of  law  appearing  in  the  body  of  the  decree 
itself,  without  averment  or  further  examination  of  any  matter  of 
fact  before  the  decree,  or  of  any  matter  resting  upon  record, 
which  might  have  been  had  at  the  time  of  the  decree — so  in  page 
98  of  the  same  book,  he  states  the  principle  to  be  that  upon  a 
bill  of  review,  the  party  cannot  assign  for  error,  that  any  of  the 
matters  decreed,  are  contrary  to  the  proofs  in  the  cause;  but 
must  shew  some  error  appearing  in  the  body  of  the  decree,  or 
new  matter  discovered  since  the  decree  made.  So  in  Cat- 
terall  vs.  Purchase,  1  Jltkyrfs  Rep.  290,  the  Lord  Chancellor  ob- 
served it  is  true  on  arguing  a  demurrer  to  a  bill  of  review  no- 
thing can  be  read  but  what  appears  on  the  face  of  the  decree, 
but  after  the  demurrer  is  over  ruled,  the  plaintiffs  are  at  liber- 
ty to  read  bill  or  answer,  or  any  other  evidence,  as  at  a  re- 
hearing, the  cause  being  now  equally  open.  To  the  same  effect 
see  Coopers  Pleadings  in  Equity,  page  89,  Mitford,  page  178. 
Taylor  vs.  Sharp,  SPeere  Williams,  37 1 — If  a  decree  be  obtained 
and  enrolled,  so  that  the  cause  cannot  be  reheard  upon  a  petition, 
there  is  no  remedy  but  by  bill  of  review,  which  must  be  upon 
error  appearing  upon  the  face  of  the  decree,  or  upon  some 
new  matter,  as  a  release,  or  a  receipt  discovered  since — Jft/- 
att.  P.  R.  page  98.  When  a  bill  of  review  is  brought  for  error 
apparent,  according  to  the  English  practice,  the  usual  method 
is  for  the  defendant,  to  put  in  a  plea,  and  demurrer;  a  plea  of 
the  decree,  and  a  demurrer  against  opening  the  enrollment;  so 
that  in  effect  a  bill  of  review  cannot  be  brought  without  having 
the  leave  of  the  court  in  some  shape;  for  if  it  be  for  matter  ap- 
pearing in  the  body  of  the  decree,  then  upon  the  plea  and  de- 
murrer of  the  defendant  to  the  bill  the  court  judges  whether 
there  are  any  grounds  for  opening  the  enrollment ;  if  it  be  for 
matter  come  to  the  plaintiffs  knowledge  after  pronouncing  the 
decree,  then  uppn  a  petition  for  leave  to  bring  a  bill  of  review, 
the  court  will  judge  if  there  be  any  foundation  for  such  leave, 
Wyatts  P.  R.  page  99.  The  defendant  generally  puts  in  the 


OF  MARYLAND.  425 


Burch,  et  al.  vs.  Scott. — 1829. 


usual  demurrer,  that  there  is  no  error  in  the  decree.  He  rare- 
ly or  ever  answers  unless  ordered  thereto  by  the  court,  and  the 
demurrer  being  set  down  to  be  argued,  the  court  proceeds  to 
affirm  or  reverse  the  decree,  and  the  prevailing  party  takes 
the  deposite,  (a)  same  book,  same  page.  In  the  case  now  before 
this  court,  the  defendants  have  thought  fit  to  desert  the  usual 
course  of  proceedings,  according  to  the  above  practice,  and 
have  put  in  their  answer  instead  of  demurring.  But  upon  a 
bill  of  review  for  error  apparent  no  distinction  has  been  discov 
ered,  between  an  answer,  and  a  demurrer,  because  in  both  ca- 
ses the  court  will  judge  whether  there  be  error  in  the  body  of 
the  decree.  Upon  examining  the]  decree  in  this  case,  it  does 
not  appear  to  this  court,  that  there  is  any  error  in  law  apparent 
upon  its  face,  nor  can  the  bill  be  supported  upon  the  ground  of 
new  matter  discovered  since  the  decree,  because  such  new 
matter  must  be  to  prove  what  was  before  in  issue,  and  the  leave 
of  the  court  must  be  obtained  before  a  bill  of  review  can  be 
filed  on  this  ground,  and  which  the  court  will  not  grant,  without 
an  affidavit  that  the  new  matter  could  not  be  produced  or  used 
by  the  party  claiming  the  benefit  of  it  at  the  time,  when  the 
decree  was  made.  No  such  new  proof  is  alleged  in  this  case 
to  have  been  discovered  since  the  decree  was  made.  Cooper's 
Plead,  in  Equity,  page  91.  A  supplemental  bill  in  the  nature  of 
a  bill  of  review,  for  want  of  proper  parties  will  not  be  available, 
after  a  decree  has  been  signed  and  enrolled.  See  Wiser  vs.  Black- 
ly, 2  Johnson  JV.  Y.  C.  Rep.  488.  Cooper's  Equity  Plead,  page 
94,  where  a  decree  is  impeached  oathe  ground  of  fraud  practised 
in  obtaining  it,  the  fraud  must  be' established  by  proof,  before 
the  propriety  of  the  decree  can  be  investigated,  same  book, 
page  97.  There  is  nothing  in  this  case  by  which  it  can  be 
sustained  upon  the  ground  of  new  matter  discovered  since  the 
decree,  for  such  new  matter  as  already  remarked,  must  be  some- 
thing tending  to  prove  what  was  in  issue  between  the  parties. 
Cooper'*  Equity  Plead,  page  91,  and  where  either  a  bill  of  review 

(a)  A  sum  formerly  deposited  in  court  as  a  security,  to  satisfy  costs  and 
damages  for  delay,  if  the  matter  should  be  found  against  the  party  who  pre- 
ferred such  bill.  WyatVt  P.  R.  51,  ed.  of  1714. 

VOL.  I.— 54. 


426         CASES  IN  THE  COURT  OF  APPEALS 

Burch,  et  al.  vs.  Scott.— 1829. 

after  enrollment,  or  a  supplemental  bill  in  the  nature  of  a  bill  of 
review  before  enrollment  are  brought  upon  the  ground  of  such 
discoveries,  the  leave  of  the  court  must  be  obtained,  which  the 
court  will  not  grant  without  affidavit  that  the  new  matter 
could  not  be  produced  or  used  by  the  party  claiming  the  bene- 
fit of  it,  at  the  time  when  the  decree  was  made.  Cooper's  E.  P. 
pages  91,  92,  93,  94.  Wyatfs  Chancery,  98,99.  As  to  the 
question,  when  a  decree  of  the  Court  of  Chancery  of  this  State 
is  to  be  considered  and  taken  as  enrolled,  we  consider  it  to  be 
clothed  with  that  solemnity,  when  it  is  signed  by  the  Chan- 
cellor, and  filed  by  the  register,  and  the  term  has  elapsed  dur- 
ing which  it  was  made.  The  only  question  which  remains  to 
be  considered  is,  whether  it  is  consistent  with  the  salutary  and 
wholesome  exercise  of  that  sound  discretion,  which  it  is  admit- 
ted the  court  possesses  upon  subjects  of  this  nature,  to  open  or 
discharge  the  enrollment  and  vacate  the  decree,  in  this  case  for 
the  purpose  of  enabling  the  defendant  to  make  his  defence.  Upon 
full  and  mature  deliberation,  we  are  of  opinion  that  it  is  not. 
We  consider  that  the  establishment  of  such  a  lax  principle  of 
practice  would  be  productive  of  the  most  deleterious  conse- 
quences, in  the  administration  of  equitable  jurisprudence,  by 
the  tribunals  clothed  with  Chancery  powers  in  this  State.  Af- 
ter being  repeatedly  in  contempt  by  disregarding  the  solemn 
process  of  the  court,  the  complainant  makes  his  present  applica- 
tion rather  with  an  ill  grace.  In  Wooster  vs.  Woodhull,  I  Johnson 
JV.  Y.  C.  R.  page  541,  the  Chancellor  says,  "the  interference  of 
the  court  to  relieve  a  party  from  the  consequences  of  his  default 
must  depend  upon  sound  discretion,  arising  out  of  the  circum- 
stances of  the  case.  There  is  no  general  and  positive  rule  on 
the  subject;  and  Lord  Thurlow  observed  in  one  case,  (  Williams 
vs.  Thompson,2d  Bro.  279,)  that  if  a  defendant  comes  in  after  a 
bill  has  been  taken  pro  con/esso,  upon  any  reasonable  ground  of 
indulgence  and  pays  cost,  this  court  will  attend  to  his  applica- 
tion, if  the  delay  has  not  been  extravagantly  long.  If  the  indul- 
gence be  great  and  frequent,  there  is  danger  of  abuse  of 
the  precedent,  for  the  purposes  of  delay.  According  to  the 
opinion  of  Lord  Hardwicke  as  stated  in  this  case,  the  ques- 


OF  MARYLAND.  427 


Aldridge  &  Higdou  vs.  Turner. — 1829. 


tion  in  such  cases  is,  on  which  side  the  greatest  inconveni- 
ence would  lie  ?  Testing  the  propriety  of  granting  the  present 
application  by  that  principle,  and  but  little  doubt  can  exist  as 
to  the  fate  which  ought  to  await  it.  On  the  one  hand  if  granted, 
the  complainant  might  gain  an  advantage  which  he  has  lost  by 
his  own  repeated  contumacy  and  gross  negligence;  on  the  other 
hand  instead  of  a  regular  and  speedy  administration  of  justice 
by  a  prompt  and  respectful  attention  to  the  process  and  juris- 
diction of  the  court,  they  will  be  disregarded  and  disobeyed, 
whenever  a  respondent  could  thereby  gain  an  advantage,  to  the 
great  reproach  of  the  law,  and  the  most  serious  delay  in  the  ju- 
dicial dispensations  of  justice.  On  these  grounds  it  is  conceiv- 
ed, that  the  Chancellor  erred. 

DECREE   REVERSED. 


ALDRIDGE  &HIGDON  vs.  TURNER — December,  1829. 

The  endorsement  of  T,  on  the  promisory  note  of  E  payable  to  A,  as  follows: 
"I  hereby  guarantee  the  ultimate  payment  of  the  within  note,"  is  void  for 
want  of  consideration  ;  and  under  the  plea  of  non  assumpsit  to  a  declara- 
tion founded  upon  that  guaranty,  the  objection  to  the  want  of  considera- 
tion may  be  taken. 

APPEAL  from  Saint  Mary's  County  Court.  This  was  an  ac- 
tion of  assumpsit,  brought  on  the  19th  of  February,  1825. 
There  was  but  one  count  in  the  declaration,  •  which  stated 
"That  whereas  one  Charles  C.  Egerton,  jun.  before  the  mak- 
ing of  the  promise  and  undertaking  herein  after  mentioned,  to 
wit,  on  the  2 1st  day  of  April,  in  the  year  1820,  at  the  town  of 
Baltimore,  in  Baltimore  county  in  the  State  of  Maryland,  to 
wit,  at  the  county  aforesaid,  made  and  signed  his  certain  note 
in  writing,  commonly  called  a  promissory  note,  bearing  date  the 
day  and  year  aforesaid;  and  thereby  six  months  after  date  of  the 
said  note,  promised  to  pay  to  the  said  Andrew  Mdridge  and  Ben- 
jamin D.  Higdon,  by  the  name  of  Mdridge  and  Higdon,  or  order, 
for  f  695  40  for  value  received,  by  him  the  said  Charles  C,  Eger- 
ton,jun.  and  then  and  there  delivered  the  said  note  to  the  said 


CASES  IN  THE  COURT  OF  APPEALS 

Aldridge  &  Higdon  vs.  Turner.— 1829. 

Benjamin  D.  and  Andrew,  whereby,  and  by  reason  of  which 
said  promise,  and  by  force  of  the  statute  in  such  case  made  and 
provided,  the  said  Charles  C.  Egerton,  jun.  became  liable  to 
pay  to  the  said  Andrew  and  Benjamin  D.,  the  said  sum  of  money 
mentioned  in  the  said  note,  according  to  the  tenor  and  effect  of 
the  said  note,  and  thereupon  afterwards,  to  wit,  at  the  county 
aforesaid,  in  consideration  of  the  premises  and  to  secure  the 
payment  of  the  said  sum  of  money,  in  the  said  note  mentioned, 
to  the  said  Andrew  and  Benjamin  D.,  he,  the  "  said  Josiah 
Turner,  upon  himself  assumed,  and  to  the  said  Andrew  and  Ben- 
jamin D.,  then  and  there  promised  to  guarantee  the  payment 
of  the  sum  of  money  mentioned  in  the  note  herein  before  stated ; 
by  signing  with  his  own  proper  hand  writing  on  the  back  of  the 
said  note,  the  following  obligation :  '  I  hereby  guarantee  the 
ultimate  payment  of  the  within  note.  Josiah  Turner.'  And 
the  said  Andrew  and  Benjamin  D.  aver,  that  the  said  Charles  C. 
Egerton,  jun.  hath  not  paid  to  them  the  said  sum  of  money,  in 
the  said  note  mentioned,  or  any  part  thereof,  at  any  time  what- 
ever, but  therein  hath  wholly  failed  and  made  default,  and  is  not 
able  to  pay ;  of  all  which  said  premises,  the  said  Josiah  Turner 
afterwards  had  notice  at  the  county  aforesaid,  and  by  reason 
whereof,  and  according  to  the  said  guarantee  and  undertaking  of 
the  said  Josiah,  in  form  aforesaid  made,  he,  the  said  Josiah, 
became  liable  to  pay  to  them,  the  said  Andrew  and  Benjamin  Z>., 
the  said  sum  of  money,  in  the  said  note  mentioned,  when  he 
should  be  thereunto  requested,  and  being  so  liable,  he,  the  said 
Josiah,  in  consideration  thereof,"  &c. 

The  defendant  pleaded  non  assumpsit  and  won  assumpsit  infra 
tres  annos.  General  replication  to  the  last  plea,  and  issues 
joined. 

At  the  trial  of  this  cause,  the  plaintiff  gave  in  evidence  to  the 
jury,  the  note  of  Charles  C.  Egerton,  jun.  to  the  plaintiffs',  and 
the  defendants'  assumption  thereon,  as  follows.  "Baltimore, 
April  21«f,  1820.  $685  40.  Six  months  after  date,  I  promise  to 
pay  to  Aldridge  8f  Higdon,  or  order,  six  hundred  and  eighty-five 
dollars  and  forty  cents,  for  value  received. — Charles  C.  Eger- 
ton,  jun."  On  the  back  of  the  aforegoing  note  were  the  fol- 


OF  MARYLAND.  429 


Aldridge  &  Higdon  vs.  Turner. — 1829. 


lowing  endorsements,  to  wit:  "I  hereby  guarantee  the  ulti- 
mate payment  of  the  within  note.  Josiah  Turner."  "  1821, 
November  7.  Received  J.  Turner  fy  Go's  note,  at  sixty  days,  for 
$106  50."  And  proved  the  signatures  of  said  Egerton  and 
Josiah  Turner  thereon  ;  they  also  gave  in  evidence,  the  judg- 
ment of  Jlldridge  and  Higdon  against  Charles  C.  Egerton,  jun., 
obtained  in  March,  1824,  on  this  note,  and  the  proceedings 
thereon,  two  writs  of  fieri  facias,  returned  nulla  bona. 

The  plaintiffs  also  read  in  evidence,  a  conveyance  from 
Charles  C.  Egerton,  jun,  to  Josiah  Turner  and  Edward  Jlfaddox, 
dated  the  6th  of  February,  1824,  reciting  that  the  said  Egerton 
was  indebted  to  Josiah  and  Philip  Turner,  on  two  notes  dated, 
&c.,  and  that  they  had  become  security  for  said  Egerton,  in 
certain  enumerated  notes,  "  and  in  divers  other  cases,  not  at 
this  time  to  be  accurately  enumerated  and  set  forth  ;  also,  that 
the  said  Maddox  had  become  security  for  the  said  Egerton  &LC^ 
whereby,  in  consideration  of  the  premises,  and  of  the  sum  of 
five  dollars,"  the  said  Egerton  conveyed  to  the  said  Turner  and 
Maddox,  sundry  negro  slaves,  goods  and  chattels,  &c.  in  trust  for 
the  said  Turner  and  JWaddox,  to  sell  and  dispose  of  the  said 
negroes,  goods  and  chattels,  &c.  and  apply  the  proceeds  to  the 
discharge  of  the  debts  due  as  before  mentioned,  and  to  indemnk 
fy  them  against  suretyships,  &c.  the  said  conveyance  was  duly 
acknowledged  and  recorded  according  to  law.  Whereupon,, 
the  defendant  prayed  the  court  to  instruct  the  jury,  that  the 
plaintiffs  were  not  entitled  to  recover  ;  because  no  liability  at-. 
tached  to  the  defendant  in  this  cause,  by  the  assumption  endors-. 
ed  on  the  aforesaid  note,  there  being  no  consideration  mention-, 
ed  in  said  assumption;  which  instruction  the  court  gave.  The 
plaintiffs  excepted ;  and  the  verdict  and  judgment  being  against 
them,  they  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.,  EARLE 
and  DORSEY  J. 

Stonestreet  for  the  appellants,  contended  that  the  defect 
in  the  plaintiffs  cause  of  action  should  have  been  taken  advan- 
tage of  by  demurrer. 


130          CASES  IN  THE  COURT  OF  APPEALS 

Turner,  Adm'r  of  Wilder  vt.  Ann  Egerton.— 1829. 

A.  C.  Magnifier,  for  the  appellee. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court. 

We  do  not  perceive  any  error  in  the  opinion  of  the  court  be- 
low, and  the  instruction  given  at  the  trial  to  the  jury,  that  the 
plaintiffs  were  not  entitled  to  recover. 

The  guaranty  by  Turner,  written  upon  the  back  of  the  pro- 
missory note,  given  by  Egerton  to  the  plaintiffs,  of  the  ultimate 
payment  of  the  amount,  appearing  to  be  wholly  without  conside- 
ration, was  clearly  nudum  pactum  and  void  ;  and  the  plea  of 
non  assumpsit  which  was  filed  by  the  defendant  to  the  declara- 
tion founded  upon  that  guaranty,  properly  let  in  the  objection  of 
the  want  of  consideration. 

JUDGMENT  AFFIRMED. 


TURNER,  Adm'r  of  WILDER,  vs.  ANN  EGERTON. 
December,  1829. 

The  value  of  property  delivered  by  an  administrator  to  a  distributee,  as  pay- 
ment of  his  portion  of  a  deceased's  estate,  cannot  be  recovered  back  in  a 
court  of  law,  in  consequence  of  such  administrator  being  afterwards  com- 
pelled by  a  recovery  at  law,  to  pay  a  debt  due  by  the  deceased,  of  which 
he  was  not  aware  when  he  distributed  the  estate  ;  or  his  having  in  part 
paid  the  debts  of  the  deceased,  out  of  his  own  private  funds.  The  remedy 
for  such  claims  is  in  a  court  of  equity. 

It  is  not  universally  true,  that  where  one  is  benefi tted  by  the  payment  of  money 
by  another,  the  law  raises  an  assumpsit  against  the  party  benefitted,  in  fa- 
vour of  the  party  paying  the  money.  A  stranger  cannot  at  his  pleasure  make 
me  his  debtor,  whether  I  will  or  not,  by  paying  a  debt  due  from  me  to 
another. 

Where  one  is  compelled  to  pay  the  debt  of  another,  he  may  recover  against 
him  in  an  action  for  money  paid,  upon  the  promise  which  the  law  implies, 
as  in  the  case  of  money  paid  by  a  surety  in  a  bond,  which  is  considered  as 
paid  to  the  use  of  the  principal,  and  may  be  recovered  in  an  action  against 
him  for  money  paid. 

APPEAL  from  Saint  Mary's  County  Court.  This  was  an 
action  of  assumpsit,  brought  by  the  appellant,  the  plaintiff  be- 
low, against  the  appellee.  The  declaration  contained  five 
counts,  one  for  matters  properly  chargeable  in  account, — for 


OF  MARYLAND. 


Turner,  Adm'r  of  Wilder  vs.  Ann  Egerton 1829. 

money  laid  out  and  expended, — for  money  lent  and  advanced, 
— for  money  had  and  received, — and  on  an  insimul  computas- 
sent.  The  defendant  pleaded  non  assumpsit  and  issue  was 
joined. 

At  the  trial,  the  plaintiff  offered  in  evidence  to  the  jury,  and 
proved  by  competent  testimony,  that  Edward  Wilder,  as  admin- 
istrator of  James  Egerton,  paid  over  to  Jinn  Egerton,  the  de- 
fendant, property  (belonging  to  the  estate  of  his  intestate  James 
Egerton,  and  with  which  he  had  charged  himself  in  the  invento- 
ry of  the  deceased  estate)  amounting  by  the  appraisement,  to  the 
sum  of  $791  47,  in  February  of  the  year  1812,  and  that  he 
had  paid  over  a  like  amount  of  property  to  the  other  distributees. 
He  also  proved  that  the  said  James  Egerton  left  at  his  death,  six 
children,  his  only  heirs  and  distributees  of  his  personal  estate,  all 
of  whom  are  now  living,  and  that  Jinn  Egerton,  the  defendant,  is 
one  of  them :  he  also  gave  in  evidence  to  the  jury,  the  inventory 
and  six  accounts,  exhibited  and  passed  in  the  Orphans'  Court 
of  said  county,  by  Edward  Wilder  as  administrator  aforesaid. 
The  inventory  referred  to,  was  returned  and  proved  on  the  12th 
of  June,  181 1 ,  amounting  to  $9348  96.  The  first  account  passed 
by  said  Edward  Wilder  on  the  2d  of  June,  1812,  charged  him  with 
the  amount  of  the  inventory  and  cash  received  from  sundry  per- 
sons, the  whole  amounting  to  $11,385  66,  credited  him  with 
payments  and  disbursements  amounting  to  $104  64,  leaving  a 
balance  due  of  $10,342  01, — the  second  account  left  a  balance 
due  of  $10,154  70, — the  third  account  left  a  balance  due  of 
$7,285  89,— the  fourth  account  left  a  balance  due  of  $500  36, 
— the  fifth  account  left  a  balance  due  of  S2,095  18, — and  the 
sixth  account  left  a  balance  due  of  gl  ,503  80.     He  also  proved 
that  a  large  debt  was  recovered  by  judgment  of  Saint  Mary's 
County  Court,  against  the  said  Edward  Wilder,  as  administrator  of 
James  Egerton,  which  he  did  not  expect  would  be  recovered  at 
the  time  he  made  a  distribution  of  the  assets  among  the  distribu- 
tees as  aforesaid,  and  which  judgment  was  paid  by  him;  he  also 
proved  that  the  debts  were  in  part  paid  by  Wilder  from  his  private 
funds,  for  the  reinbursement  of  which,  this  action  is  brought ;  upon 
this  proof,  the  defendant  then  prayed  the  court  to  instruct  the 


CASES  IN  THE  COURT  OF  APPEALS 

Turner,  Adrn'r  of  Wilder  vs.  Ann  Egerton. — 1829. 

jury,  that  under  the  pleadings  and  evidence  in  this  cause,  the 
plaintiff  was  not  entitled  to  recover,  which  instruction  the  court 
gave.  The  plaintiff  excepted,  and  the  verdict  and  judgment 
being  for  the  defendant,  the  plaintiff  appealed  to  this  court. 

The 'cause  was  argued  before  BUCHANAN,  Ch.  J.,  EABLE  and 

DORSEY,  J. 

Stonestreet  for  the  appellant  contended. 

1 .  That  the  court  below  erred  in  giving  an  instruction  against 
the  plaintiff,  upon  the  general  prayer,  that  upon  the  pleadings 
and  evidence,  he  was  not  entitled  to  recover.     The  particular 
objection  should  have  been  stated.     Act  0/1825,  ch.  117. 

2.  The  plaintiff  having  proved  an  over  payment  might  recov- 
er it  back  in  this  form  of  action. 

C.  Dorsey,  for  the  appellee.  Insisted  that  an  action  at  law 
cannot  be  sustained  against  a  legatee  or  distributee,  for  money 
overpaid  him  by  an  executor  or  administrator.  2  Fonbl.  376. 
(Ed.  1820.) 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court. 

This  is  the  case  of  an  administrator  who  thinking  he  has  paid 
off  all  the  debts  of  the  deceased,  delivered  over  to  the  children 
of  the  deceased,  the  proportions  of  the  residue  of  the  personal 
estate,  to  which  they  were  respectively  supposed  to  be  entitled 
as  distributees.  But  being  afterwards  compelled  by  a  recove- 
ry at  law,  to  pay  a  considerable  debt  due  by  the  deceased,  of 
which  he  was  not  at  the  time  aware,  and  having  in  part  paid 
the  debts  of  the  deceased,  out  of  his  own  private  funds,  brought 
his  suit  against  one  of  the  distributees  to  recover  a  just  propor- 
tion of  the  amount  so  recovered  against,  and  paid  by  him.  The 
counts  in  the  declaration  for  matters  proper  chargeable  in  ac- 
count, money  lent  and  advanced,  money  had  and  received,  and 
on  an  insimul  computassent,  are  entirely  out  of  the  question, 
there  being  no  evidence  in  the  cause  |in  any  manner  or  sense 
applicable  to  either  of  them;  and  the  question  is,  whether,  under 
the  circumstances  disclosed,  the  plaintiff  is  entitled  to  recover 
on  the  count  for  money  laid  out  and  expended. 


OF  MARYLAND.  433 


Turner,  Adm'r  of  Wilder  vs.  Ann  Egerton 1829. 

It  has  been  urged,  that  where  one  is  benefited  by  the  pay- 
ment of  money  by  another,  the  law  raises  an  assumpsit  against 
the  party  benefited,  in  favour  of  the  party  paying  the  money, 
but  the  universality  of  that  proposition  is  not  admitted.  A  stran- 
ger cannot  at  his  pleasure  make  me  his  debtor,  whether  I  will 
or  not,  by  paying  a  debt  due  from  me  to  another.  Such  a  pay- 
ment might  ordinarily  be  deemed  to  be  for  my  benefit,  yet  the 
law  does  not  in  such  a  case  raise  an  assumpsit.  If  it  were  so, 
it  would  be  to  put  every  man  who  owed  a  debt  at  the  mercy  of 
an  enemy,  who  might  choose  to  make  himself  his  creditor  with- 
out his  concent  or  authority,  for  the  purpose  of  harrassing  and  dis- 
tressing him :  and  to  deprive  him  of  defences  which  he  might 
have  had  to  a  suit  by  his  original  creditor,  but  of  which  he 
would  not  be  able  to  avail  himself,  against  such  newly  created 
liability.  It  is  true  that  where  one  is  compelled  to  pay  the  debt 
of  another,  he  may  recover  against  him  in  an  action  for  money 
paid,  &c.  upon  the  promise  which  the  law  implies,  as  in  the 
case  of  money  paid  by  a  surety  in  a  bond,  which  is  considered 
as  paid  to  the  use  of  the  principal,  and  may  be  recovered  in  an 
action  against  him  for  money  paid,  &c.  But  that  is  not  this 
case.  Here  was  no  debt  due  from  the  distributee  to  the  credi- 
tor of  the  intestate,  no  demand  which  could  have  been  enforced 
at  law  against  her;  and  the  money  paid  by  the  plaintiff,  though 
not  voluntarily,  but  under  a  recovery  against  him  in  a  suit  at  law, 
was  in  discharge  of  his  own  liability  as  administrator,  and  not 
of  a  debt  due  from  the  distributee,  nor  on  account  of  his  being 
placed  in  a  situation  of  responsibility  by  any  act  of  hers.  It 
was  not  therefore  a  payment  of /money  to  her  use,  for  which 
the  law  will  raise  an  implied  promise  of  repayment,  on  account 
of  there  being  in  her  hands  a  portion  of  the  personal  assets  of 
the  intestate.  If  in  such  a  case  as  this,  an  action  at  law  could 
be  maintained  on  the  ground  of  an  implied  assumpsit,  it  would 
be  in  the  power  of  fraudulent  or  negligent  executors  and  ad- 
ministrators, by  covinously  or  carelessly  suffering  judgments  to 
go  against  them,  and  constituting  themselves  creditors  of  lega- 
tees, and  distributees  without  their  knowledge  or  authority,  so 
to  change  their  predicament  against  their  consent,  as  in  suits 
VOL.  1.— 55. 


434 


Turner,  Adm'r  Wilder  of  vs.  Egerton. — 1829. 


at  law  instituted  upon  such  implied  promises,  to  deprive  them  of 
the  benefit  of  defences,  that  might  be  accorded  to  them  in 
proceedings  in  Chancery  against  the'funds  in  their  hands,  by  the 
original  creditors  of  the  deceased,  which  would  be  of  mischiev- 
ous consequence  to  legatees  and  distributees.  And  it  would  be 
unjust  to  permit  an  executor  or  administrator,  by  thus  consti- 
tuting a  legatee  or  distributee  his  debtor,  without  his  consent  or 
knowledge,  to  place  him  in  a  worse  situation  in  relation  to  that 
debt  than  he  stood  in  before;  which  would  be  the  case  if  he 
could  pursue  him  for  the  recovery  of  it,  on  an  implied  assump- 
sit,  in  a  court  of  law  instead  of  a  court  of  equity,  where  alone 
he  could  have  been  called  upon  before,  where  equity  is  ad- 
ministered, in  a  manner,  in  which  it  cannot  be  in  a  court  of  law. 
A  court  of  law  not  being  a  fit  tribunal  to  investigate  and  unra- 
vel accounts  of  executors  and  administrators,  and  not  being  so 
constituted  as  to  be  able,  to  take  into  consideration,  in  the  man- 
ner that  a  court  of  equity  would,  how  the  funds  were  in  fact 
appropriated,  and  the  mode  in  which  they  might,  and  ought  to 
have  been  applied.  With  this  view  of  the  subject,  we  think 
with  the  court  below,  that  the  plaintiff  is  not  entitled  to  recover, 
and  that  in  bringing  his  action  in  a  court  of  law  he  mistook  his 
tribunal,  and  ought  to  have  sought  his  remedy  in  a  court  of 
equity,  where  matters  of  the  kind  are  properly  cognizable,  and 
the  interests  of  all  parties  equally  protected. 

JUDGMENT  AFFIRMED, 


TURNER,  Adm'r  of  WILDER  vs.  EGERTON. — December,  1829. 

An  action  at  law  cannot  be  maintained  to  recover  back  a  payment  in  money, 
made  by  an  administrator  to  the  guardian  of  a  distributee  of  his  intestate. 
The  remedy  is  in  Equity. 

APPEAL  from  Saint  Mary's  County  Court.  This  was  an  ac- 
tion of  assumpsit,  brought  by  the  appellant  against  the  appellee, 
who  was  guardian  of  E.  Egerton.  The  declaration  contained 
a  count,  for  matters  and  articles  properly  chargeable  in  account, 
the  money'counts,  and  a  count  on  an  insimul  computassent.  Plea 
non  assumpsit  and  issue . 


OF  MARYLAND.  435 


Turner,  Adm'r  of  Wilder,  vs.  Egerton. — 1829. 


The  facts  of  this  were  similar  to  those  of  the  preceding 
case,  with  the  addition  here  that  the  guardian,  the  defendant,  had 
received  a  payment  in  money  from  Wilder,  as  administrator  of 
James  Egerton,  on  account  of  his  ward,  who  was  a  distributee 
of  James  Egerton. 

The  defendant  prayed  the  court  to  instruct  the  jury,  that  the 
plaintiff  was  not  entitled  to  recover  for  the  following  reasons : 
first,  that  the  plaintiff  had  proved  that  the  payment  to  the  guar- 
dian was  in  specific  property,  negroes,  &c. ;  as  in  the  receipt 
specified,  and  therefore  he  could  not  support  this  action  upon 
the  pleadings  against  the  defendant  for  the  recovery  of  the 
money,  which  instruction  the  court  gave,  the  plaintiff  excepted. 
And  the  verdict  and  judgment  being  aga'nst  him,  he  appealed 
to  the  Court  of  Appeals. 

The  case  was  argued  before  BUCHANAN,  Ch.  J.,  EARLE  and 

DORSEY,  J. 

Stonestreet  for  the  appellant. 
C.  Dorset/  for  the  appellee. 

BUCHANAN,  Ch.  J.,  delivered  the  opinion  of  the  Court 
This  case  does  not  materially  differ  from  that  just  decided, 
between  the  same  plaintiff  and  Ann  Egerton,  and  must  be  gov- 
erned by  the  same  principles.  There  the  supposed  proportion 
of  the  personal  assets  of  the  deceased  was  delivered  over  to  the 
distributee  in  specific  property,  and  in  this  case  the  administra- 
tor settled  up  with  the  guardian  6f  one  of  the  children  of  his 
intestate,  for  the  proportion  to  which  the  ward  was  supposed 
to  be  entitled  as  a  distributee,  and  the  two  suits  were  brought 
to  recover  back  proportionate  parts  of  the  same  debt  due  by 
the  intestate,  which  the  administrator  was  compelled  to  pay,  by 
a  recovery  against  him  at  law,  after  he  had  made  distribution 
of  the  assets. 

The  evidence  of  the  settlement  with  the  guardian  is  a  receipt, 
by  which  it  appears  that  he  received  a  part  of  his  wards  sup- 
posed proportion  of  the  estate  in  money,  and  the  residue  in 


.130         CASES  IN  THE  COURT  OF  APPEALS 

Turner,  Adm'r  of  Wilder  vs.  Egerton — 1829. 

specific  property.  And  there  being  in  the  declaration  in  this 
case,  a  count  for  money  had  and  received,  it  was  urged  in  argu- 
ment, that  under  that  count,  the  plaintiff  would  be  entitled  to 
recover  on  account  of  the  money  paid  to  the  guardian,  which  it 
was  supposed  distinguished  it  from  the  other  case,  where  no 
money  was  paid  to  the  dibtributee,  but  specific  property  only 
delivered  over. 

But  there  is  no  foundation  for  such  a  distinction.  If  where 
an  executor  or  administrator  has  delivered  over  specific  arti- 
cles of  property  to  a  distributee,  and  is  afterwards  made  to  pay 
debts  due  by  the  deceased,  the  law  will  not  raise  an  assumpsit, 
on  which  an  action  can  be  maintained  against  the  distributee  for 
money  paid;  there  is  no  reason,  why  an  action  at  law  for  mo- 
ney had  and  received,  should  be  sustained,  where  money  has 
been  paid  to  a  distributee  in  lieu  of  the  specific  articles  of  pro- 
perty. 

The  inconvenience  and  mischief  to  distributees  would  be  the 
same  in  both  cases,  and  the  reasons  why  a  court  of  law  should 
not  entertain  an  action,  but  the  party  be  put  to  seek  his  remedy 
in  Chancery,  apply  as  well  to  one  case  as  the  other.  In  John- 
son vs.  Johnson ,  3  Bos.  and  Pull.  1 69,  it  is  treated  as  settled,  that 
if  an  executor  thinking  he  has  paid  off  the  debts  of  his  testator, 
pays  the  legacies,  he  cannot  maintain  an  action  in  a  court  of 
common  law,  for  money  had  and  received  against  a  legatee, 
but  must  seek  his  remedy  in  equity.  The  same  principle  ap- 
plies to  the  case  of  a  distributee;  and  the  circumstance  that  in 
this  case  the  money  was  paid  to  the  guardian  of  the  distribu- 
tee, and  not  to  the  distributee  himself,  can  make  no  difference. 

JUDGMENT  AFFIRMED. 


OF  MARYLAND.  437 


Halkerstone's  Executor  vs.  Hawkins — 1829. 


HALKERSTONE'S   Executor,  vs.   HAWKINS. — December,   1829. 

In  an  action  upon  a  bond,  with  condition  that  the  obligor,  the  defendant, 
should  exhibit  all  the  papers  concerning  and  touching  the  estate  of  the  late 
W,  deceased,  to  B,  mutually  appointed  by  the  obligor  and  obligee  to  settle 
said  estate,  issue  was  joined  upon  a  replication,  which  assigned  as  a 
breach,  the  failure  to  exhibit  such  papers.  HELD,  that  it  was  competent 
for  the  plaintiff  to  offer  in  evidence,  an  inventory  of  W's  personal  estate, 
returned  by  the  defendant  as  his  administrator  to  the  Orphan's  Court,  it  be- 
ing a  paper  concerning  the  estate  of  W,  necessary  to  its  settlement,  one 
which  by  the  condition  of  the  defendant's  bond,  should  have  been  exhibited 
to  B,  and  proper  to  enable  the  jury  to  ascertain  the  amount  of  damages  to 
be  awarded  to  the  plaintiff. 

APPEAL  from  Charles  County  Court.  This  was  an  ac- 
tion of  debt,  brought  by  the  appellant  as  executrix  of  Robert 
Halkerstone  against  the  appellee,  on  a  bond  to  the  said  Ro- 
bert, in  the  penalty  of  £200,  dated  on  the  10th  of  June, 
1812,  with  the  following  condition :  "The  condition  of  the 
above  obligation  is  such,  that  if  the  above  bound  Samuel 
Hawkins,  his  heirs,  executors,  administrators  or  assigns,  shall 
exhibit  all  the  papers  concerning  and  touching  the  estate  of  the 
late  William  Halkerstone,  deceased,  to  Humphrey  Barnes,  Esq* 
who  is  mutually  appointed  by  the  above  parties  to  settle  said 
estate,  and  strike  a  balance,  if  any,  and  also  pay  or  cause  to  be 
paid,  such  balance,  if  any,  to  the  above  Robert  Halkerstone,  his. 
heirs  or  assigns,  that  then  the  above  obligation  to  be  void,  else  to 
be  and  remain  in  full  force  and  virtue  in  law."  Signed,  "  Sam-* 
muel  Hawkins,  Seal."  The  defendant  pleaded  non  est  factum> 
and  general  performance.  Issuj6  joined  to  the  first  plea,  and 
replication,  denying  the  exhibition  of  the  papers  mentioned  in 
the  condition  of  the  bond  to  the  second  plea.  Rejoinder  per- 
formance, and  issue  joined. 

At  the  trial,  the  plaintiff  offered  in  evidence  to  the  jury,  the 
inventory  of  the  personal  estate  of  William  Halkerstone,  de- 
ceased, returned  and  recorded  in  the  Orphan's  Court  of  Charks 
County,  by  Samuel  Hawkins,  the  administrator,  to  the  admissi- 
bility  of  which  testimony  the  defendant  objected,  and  the 
court  sustained  the  same  objection,  and  refused  to  let  the  said 
inventory  be  read  to  the  jury;  the  plaintiff  excepted.  The 


1  :{-i          CASES  IN  THE  COURT  OF  APPEALS 

ilulkcrstone's  Executor  vs.  Hawkins. — 1829. 

court  then  instructed  the  jury,  that  the  plaintiff  having  failed  to 
give  testimony  to  prove  the  amount  of  the  damages,  the  jury 
would  give  a  verdict  for  nominal  damages;  the  plaintiff  except- 
ed,  and  the  verdict  and  judgment  being  but  for  nominal 
damages,  the  plaintiff  appealed  to  the  Court  of  Appeals. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.,  EARLE  and 

DORSEY,  J. 

Stonestreet  for  the  appellant 

C.  Dorsey  for  the  appellee,  cited  Gaines  vs.  Griffith,  I 
Saund.  58.  (note.) 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  court 

The  condition  of  the  bond  on  which  this  suit  was  instituted  is, 
that  Haickins,  the  defendant,  his  executors,  &c.  "  shall  exhibit  all 
the  papers  concerning  and  touching  the  estate  of  the  late  William 
Halkerstone,  deceased,  to  Humphrey  Barnes,  Esq.  who  is  mutu- 
ally appointed  by  the  above  parties,  to  settle  said  estate,  and 
strike  a  balance,  if  any,  and  shall  also  pay  or  cause  to  be  payed 
such  balance,  if  any,  to  the  above  Robert  Halkerstone,  his 
heirs  or  assigns,"  &c. 

The  plea  is  a  plea  of  general  performance.  The  replication 
assigns  as  a  breach  of  the  condition  of  the  bond,  that  Hawkins, 
the  defendant,  did  not  exhibit  all  the  papers  concerning  and 
touching  the  estate  of  William  Halkerstone,  deceased,  to  Hum- 
phrey Barnes,  at  any  time  previous  to  the  impetration  of  the 
writ,  although  often  requested,  &c.  pursuing  the  terms  of  the 
condition,  to  which  there  is  a  rejoinder  by  the  defendant,  that  he 
did  exhibit  all  the  papers  concerning  and  touching  the  estate  of 
William  Halkerstone,  deceased,  to  Humphrey  Barnes,  previous 
to  the  impetration  of  the  writ,  &c.  and  issue. 

In  this  state  of  the  pleadings,  the  parties  went  to  trial,  when 
the  plaintiff  offered  in  evidence  to  the  jury,  the  inventory  of  the 
personal  estate  of  William  Halkerstone,  deceased,  which  had 
been  returned  by  the  defendant,  the  administrator,  and  was  re- 
corded in  the  Orphan's  Court  of  Charles  County,  amounting  to 
five  hundred  and  thirty-four  pounds  nineteen  shillings  and  six- 


OF  MARYLAND.  439 


Halkerstone's  Executor  vs.  Hawkins. — 1829. 


pence,  which  was  objected  to  by  the  counsel  for  the  defendant 
and  rejected  by  the  court  as  inadmissible. 

It  does  not  appear  why  this  paper  was  not  permitted  to  go  to- 
the  jury,  it  was  made  out  and  returned  by  the  defendant  him- 
self to  the  proper  office,  it  is  a  paper  concerning  and  touching' 
the  estate  of  William  Halkerstone,  deceased,  necessary  to  the 
settlement  of  that  estate,  and  one  which  by  the  condition  of  the 
defendant's  bond,  should  have  been  exhibited  to  Humphrey 
Barnes. 

The  issue  joined  by  the  parties  in  the  pleadings  presented  to 
the  jury  the  question,  whether  the  defendant  had  exhibited  to 
Humphrey  Barnes  all  the  papers  concerning  and  touching  the 
estate  of  William  Halkerstone,  deceased;  the  affirmative  of  which 
issue  being  held  by  the  defendant,  the  burden  of  proof  was  im- 
posed upon  him;  and  in  the  ahsence  of  proof  to  sustain  the  is- 
sue on  his  part,  it  became  necessary  for  the  plaintiff,  who  sesuit 
was  brought  for  the  recovery  of  damages  sustained  by  reason 
of  the  breach  assigned  in  the  replication  of  the  condition  of 
the  bond,  to  offer  such  evidence  to  the  jury  as  would  enable 
them  to  ascertain  the  amount  of  damages  that  he  was  entitled 
to  recover. 

And  as  the  amount  of  the  personal  estate  of  William  Holker* 
stone,  deceased,  which  had  not  been  settled  up,  (to  procure  the 
settlement  of  which  was  the  object  of  the  bond,)  was  necessary 
to  be  shown  in  order  to  arrive  at  the  damages  proper  to  be 
recovered,  the  inventory  regularly  returned  by  the  defendant 
himself,  the  administrator,  would/seem  to  have  been  not  only  an 
important,  but  an  essential  link  in  the  chain  of  evidence  necessa- 
ry to  the  ascertainment  of  that  amount. 

It  did  not  lay  in-  the  mouth  of  the  defendant  who  as  adminis- 
trator, had  himself  prepared  and  returned  it  under  the  requisite 
sanctions  to  the  proper  office,  to  object  to  the  admissibility  of 
it,  and  perceiving  no  reason  why  it  should  have  been  rejected. 
We  think  the  court  below  erred  in  not  suffering  it  to  go  to  the 
jury,  and  that  having  thus  thrown  out  important  testimony  of- 
fered by  the  plaintiff,  for  the  purpose  of  showing  the  damages 
sustained,  and  whbh  was  pertinent  to  the  issue  joined  in  the 


I  to          CASES  IN  THE  COURT  OF  APPEALS 

Dyer  vs.  Dorsey  and  Edelen. — 1829. 

cause ;  that  court  also  erred  in  instructing  the  jury,  "  that  the 
plaintitl' having  failed  to  give  testimony  to  prove  the  amount  of 
damage,  they  could  only  give  a  verdict  for  nominal  damages." 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 


DYER  vs.  DORSEY  and  EDELEN. — December,  1829. 

In  an  action  upon  agreement,  by  which,  after  reciting  that  D  had  sold  to  W 
tracts  or  parcels  of  land,  sold  by  A  to  C  and  R,  and  by  their  agents  sold  to 
D,  and  for  which  D  had  executed  a  deed  to  W;  D  covenanted  with  W,  that 
a  deed  should  be  executed  to  him,  conveying  to  him  the  said  lands  of  C 
and  R,  by  a  given  day,  and  to  that,  bound  himself  in  a  certain  penalty; — 
such  penalty  cannot  be  recovered  as  liquidated  damages,  it  was  only  intend- 
ed by  the  parties  as  a  security  for  the  faithful  performance  of  thfe  con- 
tract. 

In  this  case,  the  sum  of  money  which  it  might  be  necessary  to  pay,  for  ob- 
taining the  title  of  C  and  R,  would  furnish  the  true  measure  of  damages, 
for  a  breach  of  D's  covenant,  the  proof  of  which  sum  was  on  the  plaintiff; 
and  it  appearing  that  the  plaintiff  had  not  paid  D  the  whole  of  the  purchase 
money  for  the  said  lands,  the  jury  were  properly  instructed  that  in  esti- 
mating the  amount  of  damages,  they  should,  under  the  act  of  1785,  ch.  46, 
tec.  7;  deduct  whatever  sum  of  money  remained  in  the  hands  of  the  plaintiff 
on  account  of  said  purchase. 

APPEAL  from  Charles  County  Court.  This  was  an  action  of 
covenant,  brought  on  the  2d  of  February,  1824,  by  the  appel- 
lant, (the  plaintiff  in  the  County  Court)  against  the  appellees, 
the  defendants  in  that  court,  on  the  following  agreement,  to 
wit :  C.  Dorsey  having  sold  to  William  C.  Dyer,  tracts  or  par- 
cels of  land,  sold  by  Henry  Anderson  to  Campbell  and  Ritchie, 
and  by  their  agent,  Henry  H.  Chapman,  sold  to  C.  Dorsey,  and 
for  which  lands  the  said,  Dorsey  has  executed  a  deed  to  the 
said  William  C.  Dyer.  Now  we  hereby  covenant  and  bind 
ourselves  to  the  said  Dyer,  that  a  deed  shall  be  executed  to  the 
said  Dyer,  conveying  to  him  the  said  lands  during  the  month  of 
August,  of  Campbell  and  Ritchie,  and  to  this  we  bind  ourselves 
in  the  penalty  of  two  thousand  dollars.  Witness  our  hands  and 
seals  this  eleventh  of  June,  1822. 


OF  MARYLAND.  441 


Dyer  vs.  Dorsey  and  Edelen. — 1829. 


The  breach  laid  in  the  declaration  was,  that  the  defendants 
had  not  executed,  or  caused  to  be  executed  to  the, plaintiff,  a 
conveyance  of  the  title  of  Campbell  and  Ritchie,  at  the  time  men- 
tioned for  that  purpose  in  the  said  agreement,  before  or  since  ; 
but  that  they  had  wholly  neglected,  and  refused  so  to  do.  The 
defendants  pleaded  non  infregit  convenlionem.  Issue  joined. 

At  the  trial  the  plaintiff  read  in  evidence,  the  covenant 
on  which  this  action  was  brought,  which  the  defendants  ad- 
mitted was  signed  and  sealed  by  them.  He  then  read  in 
evidence  the  following  agreement :  "Memorandum  of  an  agree- 
ment, entered  into  on  this  26th  "day  of  April,  1822,  between 
Clement  Dorsey,  of  Saint  Mary's  county,  and  William  C.  Dyer 
of  the  other  part ;  the  said  Dorsey  covenants  and  agrees  to 
sell  to  the  said  Dyer  the  land  which  he  bought  of  Henry  H. 
Chapman,  and  which  was  conveyed  to  him  by  Henry  Anderson, 
and  to  give  him  possession  thereof  at  Christmas  next,  for  which 
the  said  Dyer  covenants  to  pay  him  twenty-five  hundred  dollars ; 
if  the  said  Doraey  request  it,  the  said  Dyer  is  to  pay  him  one 
thousand  dollars  when  called  on,  and  the  residue  at  Christmas 
next;  the  said  Dorsey  stipulates  to  give  the  said  Dyer  a  good  and 
legal  title  to  the  same  in  fee  simple,  with  a  general  warranty; 
the  said  Dorsey  has  the  use  of  the  same  this  year,  but  is  not  to 
cut  wood  or  timber  therefrom,  and  is  to  permit  the  said  Dyer  to 
seed  thereon ;  the  said  sum  of  one  thousand  dollars  is  not  to  be 
paid  till  the  deed  is  executed  to  the  said  Dyer.  In  witness  where- 
of," &c.  He  then  gave  in  evidence  to  the  jury,  that  he  had  paid  C. 
Dorsey,  one  of  the  defendants,  the  sum  of  fifteen  hundred  dollars. 
The  defendants  then  proved,  that  (he  plaintiff  had  held  posses- 
sion of  the  land  in  question,  since  the  original  purchase  up  to 
this  time,  and  gave  evidence  that  the  plaintiff  admitted  that  he 
owed  the  defendant  Dorsey,  upwards  of  one  thousand  dollars, 
for  the  land  purchased  of  the  said  Dorsey,  of  which  the  plain- 
tiff has  had  uninterrupted  possession  to  this  time.  The  plaintiff 
tjien  prayed  the  court  to  instruct  the  jury,  that  from  the  plead- 
ings and  the  evidence  in  this  cause,  the  plaintiff  was  entitled  to 
recover  the  penalty  of  two  thousand  dollars,  in  the  said  agree  j 
ment  mentioned,  upon  which  the  action  is  brought,  which  opin- 
VOL. 


41-»          CASES  IN  THE  COURT  OF  APPEALS 

Dyer  vs.  Dorscy  and  Edelen. — 1829. 

ion  and  direction  the  court  refused  to  give,  but  were  of  opinion, 
and  so  instructed  the  jury,  that  the  sum  of  money  which  it  might 
be  necessary  to  pay  for  the  obtaining  of  the  title  of  Campbell 
and  Ritchie,  would  furnish  the  true  measure  of  damages  in  this 
case,  and  that  the  proof  of  that  fact  was  upon  the  plaintiff.  They 
further  instructed  the  jury  that  in  estimating  the  amount  of 
damages  in  this  case,  they  should  deduct  whatever  sum  of  mo- 
ney remained  in  the  hands  of  the  plaintiff,  on  account  of  the  pur- 
chase made  by  him  of  Clement  Dorsey  the  defendant;  the  plain- 
till'  excepted,  and  the  verdict  and  judgment  being  but  for  nomi- 
nal damages,  be  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.,  EARLE, 
ARCHER  and  DORSEY,  J. 

Stonestreet  for  the  appellant,  referred  to  Cannell  vs.  JWLean, 
GHarr.fy  Johns.  291. 

C.  Dorsey,  for  the  appellees,  referred  to  the  act  of  1785,  ch. 
80,  sec.  1 3.  He  contended  that  the  case  in  6  Harr.  Sf  Johns. 
was  not  applicable,  as  the  party  there  was  not  in  possession  of 
the  land. 

ARCHER,  J.  delivered  the  opinion  of  the  court. 

The  penalty  cannot  be  recovered  in  this  case  as  liquidated 
damages.  It  was  only  intended  by  the  parties  as  a  security  for 
the  faithful  performance  of  the  contract. 

The  value  of  the  land  at  the  time  of  the  breach  of  the  con- 
tract ought  not,  as  has  been  contended,  to  constitute  the  mea- 
sure of  damages,  for  such  a  rule  applied  here,  would  work  this 
injustice.  The  plaintiff  would  obtain  the  value  of  the  land,  and 
would  moreover  hold  Dorset's  right  and  title,  having  obtained 
a  conveyance  for  the  same,  and  would  be  left  in  possession  of 
the  land.  Some  outstanding  right  1o  these  lands  existed  in  Camp- 
bell and  Ritchie,  but  its  precise  nature  and  character  does  not 
distinctly  appear.  Anderson  was  their  original  proprietor,  who 
sold  them  to  Campbell  and  Ritchie,  and  Chapman  the  agent  of 
Campbell  and  Ritchie,  sold  them  to  Dorsey.  The  right,  what- 


OF  MARYLAND.  443 


Clarke  vs.  Belmear.— 1829. 


ever  it  was,  which  Dorsey  acquired  under  these  contracts,  was 
conveyed  by  deed  to  the  plaintiff.  These  facts  shew  how  essen- 
tially this  case  varies  from  the  case  of  Cannell  vs.  JJ/'Lean, 
6  Hair.  8f  Johns.  297.  The  rule  laid  down  by  the  court  below, 
as  to  the  measure  of  damages,  is  the  correct  rule  to  be  applied 
to  this  controversy.  It  completely  secures  the  plaintiff,  and  in- 
demnifies him  against  the  defendant's  breach  of  the  contract. 
We  also  concur  with  the  court  below  in  the  opinion  by  them 
expressed,  that  the  onus  of  proof  in  this  respect,  lies  upon  the 
plaintiff;  for  the  plaintiff  must  always  be  prepared  with  proof  to 
shew  the  extent  of  injury  he  may  have  sustained,  by  the  breach 
of  any  contract,  before  he  can  be  entitled  to  recover  his  mea- 
sure of  damages. 

We  perceive  no  error  in  the  direction  which  the  court  gave  to 
the  jury,  that  they  ought  to  deduct  from  the  damages  they  should 
find,  whatever  sum  of  money  remained  in  the  hands  of  the  plain- 
tiff, on  account  of  the  purchase  made  by  him  of  Dorsey.  The 
doctrine  held  out  by  this  opinion,  is  maintained  and  settled  by 
the  Court  of  Appeals,  in  the  case  of  the  Baltimore  Insurance 
Company  vs.  McFadon,  4  Harr.  <§<•  Johns.  31,  in  which  the 
court  have  given  a  construction  to  the  act  of  1785,  ch.  46,  sec.  7, 
in  relation  to  set  off. 

JUDGMENT   AFFIRMED. 


CLARKE  vs.  BELMEAR/— December,  1829. 

/ 

A  return  by  the  Sheriff  to  a  writ  of  fieri  facias,  that  he  had  levied  upon  "part 
of  a  tract  of  land  called  B,  supposed  to  contain,  &c."  is  not  sufficient, 
would  be  quashed  on  motion,  and  unavailable  in  ejectment  to  prove  title  in 
a  purchaser. 

A  purchaser  at  a  sheriff's  sale  is  entitled  to  the  benefit  of  that  officer's  re- 
turn, both  to  the  fieri  facias,  and  venditioni  exponas;  and  when  the  description 
of  the  subject  levied  on,  according  to  the  schedule  returned  under  the  first 
writ,  is  defective,  it  may  be  amended  and  rendered  certain,  by  the  return 
of  the  sheriff's  proceedings,  under  the  second  writ. 

So  a  levy  under  a  fieri  facias  which  is  defective  in  the  description  of  the  pro- 
perty levied  on,  may  be  amended  by  the  sheriff's  return  of  the  property  sold 


444          CASES  IN  THE  COURT  OF  APPEALS 

Chirke  vs.  Bclrnear — 1829. 

under  such  writ,  the  return  of  the  sale  describing  the  property  Mith  suffi- 
cient certainty. 

A  purchaser  under  a  judicial  sale  has  a  right  to  resort  to  the  whole  judicial 
proceedings,  under  which  his  title  accrued,  to  ascertain  it. 

The  right  of  a  party  to  obtain  a  writ  of  habere  facias  possessionem,  under  the  act 
of  1825,  ch.  103,  does  not  relate  to  the  time  the  execution  was  issued,  but 
to  the  time  when  the  lands  were  sold. 


APPEAL  from  Prince  George's  County  Court.  This  was  a 
motion  to  quash  a  writ  of  fieri  facias,  and  a  writ  of  venditioni 
exponas,  and  the  returns,  &c. 

On  the  5th  of  December,  1822,  a  fieri  facias  issued  out  of 
Prince  George's  County  Court,  on  a  judgment  rendered  in  the 
said  court  in  favour  of  William  Holmes  against  Walter  S.  Clarke, 
to  which,  at  the  return  day,  the  sheriff  made  the  following  re- 
turn: "  laid  as  per  schedule,  and  not  sold  for  want  of  time," — 
the  schedule  returned  stated,  that  he  had  taken  part  of  Burgess' 
DeliglU,  part  of  Clarke's  Fancy  and  part  of  Hickory  Thicket, 
supposed  to  contain  two  hundred  and  seventy-five  acres.  A 
writ  of  venditioni  exponas,  thereupon  issued,  commanding  the 
sheriff  to  sell  this  property,  which  he  returned  "  not  sold  for  want 
of  time."  Alias  writs  of  vendi.  ex.  were  issued,  the  last  of 
which  was  returnable  to  October  term,  1825,  of  said  court,  to 
which  similar  returns  were  made.  On  the  13th  of  January, 
1826,  another  writ  issued,  returnable  to  April  term,  1826,  to 
which  the  late  sheriff  made  the  following  return,  "  made  to  the 
amount  of  five  hundred  dollars  by  a  sale  of  the  land  in  the  sche- 
dule contained  to  Francis  Belmcar  on  the  17th  of  June,  1826, 
the  said  lands  consisting  of  part  of  a  tract  called  Hickory 
Thicket,  part  of  a  tract  called  Clarke's  Fancy,  and  part  of  a 
tract  called  Burgess'  Deliglit,  lying  and  being  in  Prince  George's 
County,  and  beginning  for  the  whole,  at  or  near  a  stone  near  the 
main  road  that  leads  to  the  mill  now  occupied  by  Jacob  Wheeler, 
thence  a  southerly  course,  so  as  to  include  the  dwelling  house 
lately  occupied  by  Philip  Green,  and  the  orchard  contiguous 
thereto,  bounded  on  the  south  by  a  line  drawn  easterly  to  Patuxent 
river,  then  bounding  on  the  said  river,  to  the  extent  of  said  land, 
on  the  nort/iwith  said  land,  to  the  begining,  containing  two  hun- 


OF  MARYLAND.  445 


Clarke  vs.  Belmear — 1829. 


dred  and  seventy-five  acres,  more  or  less,  being  the  whole  of  the 
said  several  tracts,  of  which  the  defendant,  Walter  S.  Clarke, 
was  in  possession,  at  the  time  of  the  sale,  and  the  whole  of  his 
right,  title  and  interest,  in  and  to  the  same,  being  by  the  afore- 
said sale  transferred  by  me  to  the  said  Francis  Belmear,  by 
whom  one  hundred  dollars  was  paid  to  William  Holmes  the 
plaintiff  in  the  judgment  at  the  time,  and  the  balance  paid  to  me 
by  said  Belmear.  Thomas  Osbourne,  Sheriff."  And  the  said 
Thomas  Osbourne  at  the  time  of  making  said  return,  filed  in 
court  here  with  the  said  writ,  the  following  schedule,  to  wit: 
"A  schedule  of  the  property  of  Walter  S.  Clarke,  taken  by  virtue 
of  an  execution  issued  out  of  Prince  George's  County  Court,  at 
the  suit  of  William  Holmes,  the  property,  to  wit,  part  of  a  tract 
of  land  by  name  Burgess"*  Delight,  and  part  of  a  tract  of  land 
called  Hickory  Thicket  and  Clarke's  Fancy,  lying  in  Prince 
George's  County,  containing  two  hundred  and  seventy-five  acres, 
and  appraised  at  ten  dollars  per  acre.  Two  thousand  seven  hun- 
dred and  fifty  dollars.  JVathan  Waters,  seal.  Samuel  Waters, 
seal.  Appraised  this  17th  day  June,  1826.  Sworn  appraisers." 
At  April  term  of  said  court,  1827,  Francis  Belmear  the  pur- 
chaser, moved  the  court  for  a  writ  of  habere  facias  possessionem, 
to  put  him  in  possession  of  the  property  so  by  him  purchased, 
which  was  accordingly  ordered,  and  issued  returnable  to  Octo- 
ber term,  1 827,  when  the  sheriff  returned  "possession  delivered," 
which  said  writ  at  that  term  was  on  the  motion  of  said  Clarke 
quashed  by  the  County  Court,  in  consequence  of  not  describing 
with  sufficient  certainty  the  lands/of  which  possession  was  to  be 
delivered,  the  said  Walter  S.  Clarke  then  moved  the  court,  that 
said  writs  of  fieri  facias,  and  venditioni  exponas,  and  the  returns 
thereto  be  quashed,  and  at  the  same  time  filed  the  following  rea- 
sons :  1.  For  that  the  description  of  the  lands  in  the  said  writs 
and  returns  is  uncertain,  and  consequently  the  executions  are  void. 
2.  Because  the  description  of  thelands  in  the  return  of  the  fi.fa. 
which  was  first  sued  out  in  this  cause,  upon  which  return,  the 
v.e.  is  predicated,  is  uncertain,  and  the  writ  aforesaid  consequent- 
ly void. 


\  if,          CASES  IN  THE  COURT  OF  APPEALS 


Clark  vs.  Belniear.— 1829. 

T 


This  motion  was  overruled  by  the  County  Court,  and  a  se- 
cond kabcre  facias  ordered. 
The  defendant  Clarke  appealed  to  the  Court  of  Appeals. 

The'cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  ARCHER  and  DORSEY,  J. 

jj.  C.  Magruder  and  J".  Forrest,  for  the  "appellant  contended, 
1.  That  the  fieri  facias  was  void  for  uncertainty,  and  that  the 
court  erred  in  adjudging  a  second  writ  of  possession  to  be  issued. 
2.  The  court  erred,  because  the  act  of  Assembly  upon  which 
the  writ  of  habere  facias  possessionem  issued,  was  not  in  force, 
when  the  levy  under  the  fieri  facias  was  made,  nor  when  the 
writ  of  venditioni  exponas  issued,  and  it  would  be  giving  an 
ex  post  facto  operation  to  the  law  to  make  it  applicable  to  cases 
of  property  already  taken  in  execution.  3.  Because  the  sale 
was  made  after  the  return  day  of  the  writ  of  vendit ioni  expon- 
as. On  the  1  st  point  they  referred  to  Underhill  vs.  Devereaux, 
2  Saund.  69,  a  (note  2.)  Pulkn  vs.  Purbeck,  12  Mod.  355. 
Williamson  vs.  Perkins,  I  Harr.  and  Johns.  449.  Hammond  vs. 
JVorrts,  2  Harr.  and  Johns.  147.  Berry  vs.  JYicholls,  Ib.  508. 
Fitzhugh  vs.  Hellen,  3  Harr.  and  Johns.  206.  Thomas  vs.  Tur- 
vey,  I  Harr.  and  Gill,  435.  Fenwick  vs.  Floyd,  Ib.  172.  On 
the  3d  point  they  referred  to  Barney  vs.  Patterson,  6  Harr.  and 
Johns.  182. 

Stonestreet  and  J.  Johnson,  for  the  appellee. 

The  sale  took  place  on  the  17th  of  June,  1826,  and  the  writ  of 
habere  facias  possessionem,  under  the  act  of  1825,  ch.  103,  was 
moved  for,  and  ordered  at  April  term,  1827,  returnable  to  Oc- 
tober term,  1827.  The  act  of  1825  gives  the  party  one  entire 
term,  and  four  days  of  the  succeeding  term,  to  show  cause 
against  the  issuing  of  the  habere  facias.  This  time  expired 
before  the  writ  was  ordered.  The  act  of  1825  says  nothing 
about  the  time  the  issuing  of  the  writ  under  which  the  sale 
is  made.  If  the  sale  is  made  after  the  passage  of  the  law,  the 
purchaser  is  entitled  to  his  habere,  by  the  express  terms  of  the 
statute;  although  the  writ  under  which  }t  may  be  effected  is 


OF  MARYLAND.  447 


Clark  vs.  Belmear.— 1829. 


sued  previously.  On  the  first  point,  they  contended,  that  the 
fieri  facias,  and  their  return  thereto,  the  several  writs  of  vendi- 
tioni  exponas,  and  their  returns,  should  be  connected  together, 
and  so  considered  they  present  a  perfect  levy  and  sale,  and 
the  lands  sold  are  sufficiently  described.  In  Thomas  vs.  Tur- 
vey,  1  Harr.  and  Gill,  435,  one  of  the  schedules  described  the 
land  correctly,  and  it  was  adjudged  sufficient  to  cure  the  de- 
fects of  the  rest.  It  is  the  sale  and  not  the  return  which  trans- 
fers the  title,  6  Harr.  and  Johns.  182.  The  return  is  only  useful 
as  evidence  of  the  sale,  and  may  be  dispensed  with  if  there  be 
a  note  or  memorandum  in  writing — the  sheriff  may  correct  his 
return  if  he  ask  leave  to  do  so  in  due  time,  Berry  vs.  Griffith, 
2  Harr.  and  Gill,  337.  But  it  is  too  late  now  to  move  to  set 
aside  the  return  to  \hefierifacias,  if  it  is  defective — the  applica- 
tion should  have  been  made  immediately  upon  its  return,  or  at 
all  events  upon  the  return  of  the  first  venditioni  exponas.  Dand 
vs.  Barnes,  I  Serg.  and  Low,  291.  (6  Taunt.)  Fletcher  vs.  Wells, 
Ib.  352.  (6  Taunt.  191.)  Four  years  intervened  between  the 
issuing  of  the  fieri  facias  and  the  venditioni  exponas  under 
which  the  sale  was  made,  and  eighteen  months  between  the 
sale  and  the  present  motion.  The  County  Court  at  April 
term,  1827,  by  ordering  the  habere,  adjudged  the  sale  and  re- 
turns valid,  it  was  therefore  too  late  at  the  ensuing  October 
term  to  bring  the  same  question  before  them,  they  could  not 
interfere  with  a  judgment  pronounced  by  them  at  a  preceding 
term.  Jacob  L.  D.  tit.  term,  212.  JWunnikuysen  vs.  Dorsett, 
2  Harr.  and  Gill,  374. 

MARTIN,  J.  delivered  the  opinion  of  the  Court. 

After  recapitulating  the  facts  as  set  out  in  the  commence- 
ment of  the  report  of  this  case,  the  Judge  proceeded  to  "state, 
that  from  these  proceedings  Clarke  has  appealed  and  contends, 
1st.  That  the  writs  of  fieri  facias  and  venditioni  exponas  and 
the  returns  made  to  them  are  void  for  uncertainty ;  and  2dly. 
If  they  are  sufficient,  Belmear  was  not  entitled  to  the  writ  of 
habere  facias  possessionem  under  the  act  of  1825,  as  the  lands 
were  in  execution  prior  to  the  passage  of  that  act. 


418         CASES  IN  THE  COURT  OF  APPEALS 

Clark  rs.  Belmear.— 1829. 

The  description  of  the  property  contained  in  the  schedule 
returned  by  the  sheriff  to  the  fieri  facias  was,  "partof  Burgess' 
Delight,  part  of  Clarke's  .Fancy,  and  part  of  Hickory  Thicket, 
supposed  to  contain  275  acres."  Did  the  case  rest  upon  this 
return  alone,  we  should  not  consider  it  open  for  discussion. 
It  has  been  solemnly  determined  by  many  adjudications  of  this 
court,  that  such  a  return  is  not  sufficient,  that  it  would  be 
quashed  on  motion,  and  would  be  unavailable  in  an  ejectment  to 
prove  title  in  the  plaintiff.  Williamson  vs.  Perkins,  1  Harr.  and 
Johns.  449.  Hammond  vs.  JVorm,  2  Harr.  and  Johns.  147.  Filz- 
hugh  vs.  Hellen,  3  Harr.  and  Johns.  206.  Fenicick  vs.  Floyd, 
1  Harr.  and  Gill,  172.  Thomas  vs.  Turvey,  2  Harr.  and  Gill,  435. 

But  it  does  not  rest  upon  this  return  alone  ;  the  sheriff  having 
returned  he  had  not  sold  the  lands  under  the  Jieri  facias  for  want 
of  time,  a  venditioni  exponas  was  issued,  commanding  him  to 
sell  the  lands  before  taken  by  him,  under  the  fieri  facias, — to 
this  venditioni  he  makes  a  special  return,  stating  in  substance, 
that  he  had  sold  the  lands  before  taken  in  execution,  under  the 
fieri  facias,  gives  a  description  of  those  lands  by  metes  and 
bounds,  and  that  Francis  Belmear  became  the  purchaser  for 
$500,  which  sum  had  been  paid  by  him.  The  question  then 
arises,  whether  the  purchaser  is  not  entitled  to  the  benefit  of 
both  those  returns  to  shew  the  description  of  the  lands  he  had 
purchased  under  them  ?  This  was  a  judicial  sale,  and  the  pur- 
chaser claims  title  under  the  whole  proceedings,  embracing 
both  writs  and  returns.  The  fieri  facias  is  the  effective  writ  in 
these  cases,  it  not  only  authorises  the  sheriff  to  seize,  but  to 
sell,  very  different  is  the  office  of  a  venditioni  exponas.  That 
confers  no  new  power  to  the  sheriff;  it  does  not  authorise  him 
to  do  any  act,  that  he  might  not  have  done  under  the  fieri  facias. 
It  is  only  a  mandatory  writ,  and  directs  him  to  carry  the  fieri 
facias  into  effect,  by  selling  the  lands  taken  in  execution  under 
it,  and  when  the  lands  are  sold,  the  return  to  the  venditioni  re- 
lates to,  and  in  legal  effect,  becomes  part  of  the  return  to,  the 
fieri  facias.  Suppose  in  this  case  the  sheriff  had  sold  the  lands 
under  the  fieri  facias  without  the  aid  of  a  venditioni  exponas,  and 
had  returned  that  he  had  sold  the  lands  in  the  schedule  mention- 


OF  MARYLAND.  449 


State  use  Oyster  vs.  Annan. — 1829. 


ed,  which  lands  were  contained  within  certain  metes  and  bounds 
set  out  in  the  return  to  the  sale,  can  there  be  a  doubt  that  the 
return  thus  correctly  describing  the  lands  would  not  be  sufficient, 
to  give  certainty  to  those  mentioned  in  the  schedule  ?  If  then 
the  description  in  the  schedule  might  be  corrected  by  the  re- 
turn to  the  sale,  if  made  immediately  under  the  fieri  facias,  it 
cannot  be  perceived  why  it  should  not  be  received  for  that  pur- 
pose, when  made  to  a  venditioni  exponas,  whose  only  office  is 
auxiliary  to  the  fieri  facias  and  to  carry  it  into  effect.  The  pur- 
chaser claims  title  under  the  united  effect,  of  both  those  writs, 
and  if  certainty  is  the  object  to  be  attained,  he  has  a  right  to 
resort  to  the  whole  judicial  proceedings,  under  which  his  title 
accrued  to  ascertain  it. 

It  has  been  contended  that  the  description  of  the  lands  in  the 
return  to  the  venditioni  exponas  is  not  sufficiently  certain,  to  ascer- 
tain the  location  of  them.  That  they  might  have  been  described 
with  more  accuracy  cannot  be  doubted,  but  we  think  there  is 
sufficient  certainty,  to  enable  the  party  to  make  a  true  location 
of  them. 

The  second  objection  to  the  proceedings  of  the  court,  that 
these  lands  were  taken  in  execution  prior  to  the  act  of  1825, 
ch.  103,  cannot  avail  the  appellant.  The  right  of  the  party  to 
obtain  a  writ  of  habere  facias  possessionem  under  that  act,  does 
not  relate  to  the  time  the  execution  was  issued,  but  to  the  time 
when  the  lands  were  sold,  and  it  appears  from  the  record,  the 
lands  in  this  case  were  sold  on  the  17th  day  of  June,  1826,  long 
after  the  passage  of  the  act. 

/        JUDGMENT  AFFIRMED. 


VOL.    1.— 57. 


450         CASES  IN  THE  COURT  OF  APPEALS 

State  use  OysUr  vs.  Annan — 


STATE  use  OYSTER  vs.  ANNAN. — December,  1829. 

The  bond  of  a  Trustee  appointed  by  the  Chancellor  to"  sell  the  real  estate  of 
a  deceased  person,  for  the  payment  of  his  debts,  is  not  liable  to  be  put 
in  suit,  after  the  Trustee  has  sold  the  deceased's  property,  and  received  the 
money  therefor,  upon  the  order  of  the  Chancellor  distributing  such  pro- 
ceeds among  the  creditors,  without  notice  to  the  Trustee  of  such  distribu- 
tion. 

APPEAL  from  Frederick  County  Court.  This  was  an  action 
of  debt  on  a  Trustee's  bond,  under  a  decree  of  the  Court  of 
Chancery,  brought  by  the  appellant  on  the  18th  of  February, 
1820,  pleas  general  and  special  performance.  The  following 
statement  of  facts  was  agreed  upon  by  the  parties.  "It  is  ad- 
mitted the  defendant  regularly  made  and  executed  the  writing 
obligatory  mentioned  in  the  declaration  in  the  following  words, 
to  wit:"  Know  all  men  by  these  presents,  that  we  Robert  L.  An- 
nan, William  Long,  Jacob  Winter  and  Philip  Nunnamaker,  all 
of  Frederick  County  and  State  of  Maryland,  are  held  and  firm- 
ly bound  unto  the  said  State  of  Maryland,  in  the  full  and  just  sum 
of  four  thousand  pounds  current  money,  to  be  paid  to  the  said 
State,  to  the  payment  whereof  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally,  firmly  by 
these  presents,  sealed  with  our  seals  and  dated  the  28th  day  of 
January,  1808.  Whereas  by  a  decree,  5f  the  high  Court  of 
Chancery  passed  at  December  term,  1807,  the  above  named, 
Robert  L.  Annan  and  William  Long,  were  appointed  trustees 
to  sell  the  real^estate  of  Solomon  Kephart  late  of  Frederick 
County,  deceased,  for  the  payment  of  his  debts,  as  by  the  said 
decree,  reference  being  thereto  had  will  appear;  now  the  condi- 
tion of  the  above  obligation  is  such,  that  if  the  said  Robert  L. 
Annan  and  William  Long,  do  and  shall  well  and  faithfully  per- 
form the  trust  reposed  in  them  by  the  said  decree,  or  to  be  re- 
posed in  them  by  any  future  order  or  decree  in  the  premises ; 
then  the  obligation  to  be  void,  &c. 

"That  before  the  making  the  said  writing  obligatory  to  wit,  on 
the  28th  day  of  December  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seven,  it  was  by  the  honourable  the  C/ww- 


OF  MARYLAND.  451 


State  use  Oyster  vs.  Annan. — 1829. 


cellar  of  the  State  of  Maryland  on  the  petition  of  the  creditors 
of  a  certain  Solomon  Kephart,  deceased,  upon  a  bill  filed  by 
them  against  his  heirs  at  law,  adjudged,  ordered  and  decreed, 
that  the  real  estate  of  the  said  Solomon  Kephart,  should  be  sold 
to  pay  his  debts.  And  in  the  said  decree,  Robert  L.  Annan  the 
defendant  in  this  cause,  and  a  certain  William  Long,  were  ap- 
pointed trustees  for  the  purpose  of  selling  the  real  estate  of  the 
said  Solomon  Kephart,  deceased,  to  raise  money  to  pay  his  debts, 
that  the  said  Robert  L.  Annan  and  William  Long,  accepted  the 
said  trust,  and  executed  and  made  the  writing  obligatory  afore- 
said for  their  trust  bond,  which  was  filed  in  the  Chancery  Court 
and  approved  by  the  Chancellor,  that  in  the  said  decree  the 
said  Robert  L.  Annan  and  William  Long,  were  directed  to  pro- 
ceed to  sell  the  said  real  estate  of  the  said  Solomon  Kephart, 
deceased,  and  were  also  directed  to  bring  the  money  arising  from 
the  said  sale  or  sales,  under  the  said  decree,  into  the  Chancery 
Court,  to  be  applied  under  the  directions  of  the  Chancellor,  or 
pay  it  away  under  the  direction  of  the  said  Chancellor,  after 
taking  out  the  commission  to  be  allowed  the  trustees,  and  the 
costs  of  the  suit ;  that  the  said  defendant  and  the  said  William 
Long,  on  the  7th  day  of  March,  1808,  made  sale  of  part  of  the 
said  real  estate  of  the  said  Solomon  Kephart,  deceased,  amount- 
ing to  $1437,  and  made  a  report  thereof  to  the  Chancellor. 
That  upon  the  petition  of  the  creditors  of  the  said  Solomon 
Kephart,be\ng  again  presented  to  the  Chancellor, he  did  by  ano- 
ther order  and  decree,  direct  the  said  Robert  L.  Annan  and 
the  said  William  Long,  to  make  a  further  report  of  their  pro- 
ceedings, and  of  the  situation  of /the  said  real  estate  of  the  said 
Solomon  Kephart ;  that  the  said  Robert  L.  Annan  and  William 
Long,  in  obedience  to  the  last  mentioned  order  and  decree  of 
the  Chancery  Court,  did  on  the  8th  day  of  April,  1815,  after  the 
copy  of  the  said  order  and  petition  was  served  on  them,  sell  the 
balance  of  the  real  estate  of  ^the  said  Solomon  Kephart,  and 
made  report  thereof  to  the  Chancery  Court,  amounting  to  the 
sum  of  $952.  That  the  said  Robert  L.  Annan  and  William 
Long,  received  the  whole  purchase  money  from  the  purchasers, 
both  at  the  first  and  second  sale,  but  never  brought  any  part  of 


CASES  IN  THE  COURT  OF  APPEALS 

State  use  Oyster  vs.  Annan. — 1829. 

it  into  the  Chancery  Court,  and  never  paid  any  of  it  away  under 
the  direction  of  the  Chancellor.  That  the  Chancellor  did  re- 
gularly order  and  direct  the  auditor  of  the  Chancery  Court,  to 
state  and  report  an  account  between  the  estate  of  the  said  So- 
lomon Kcphart  and  the  said  Robert  L.  Annan,  and  the  said  Wil- 
Ihim  Long;  that  the  auditor  of  the  said  court  in  obedience  to 
the  said  order  of  the  Chancellor,  did  state  an  account  as  afore- 
said, and  did  report  the  same  to  the  Chancellor,  in  which  account 
after  taking  out  the  commission  to  the  trustees,  and  their  part  of  all 
expenses  in  both  sales,  and  the  costs  of  the  Chancery  Court,  he 
did  distribute  the  balance  to  the  creditors  according  to  their  re- 
spective claims,  which  account,  distribution  and  statement,  was  af- 
terwards confirmed,  and  the  proceeds  of  the  sales  of  the  said  real 
estate  applied  according  to  the  statement  and  distribution  made 
by  the  said  auditor,  as  appears  by  exhibit  C,  made  a  part  of 
this  statement  and  contained  in  the  following  words  viz." 

Here  follows  the  auditor's  report,  shewing  the  claim  of  Jacob 
Oyster,  marked  No.  3,  to  amount  to  $346  36,  his  proportion  as 
distributed  by  the  auditor,  amounting  to  $48  88,  and  the  Chan- 
cellor's order  thereon,  confirming  the  same  and  directing  the 
proceeds  to  be  applied  accordingly,  dated  January  18th,  1820. 

"  That  the  said  auditor  in  distributing  the  proceeds  of  the  sales 
of  the  real  estate  of  the  said  Solomon  Kephart,  deceased,  has 
given  to  the  plaintiff  in  this  cause  as  one  of  the  creditors  of  the 
said  Solomon  Kephart,  as  his  dividend,  the  sum  of  $48  88,  as 
appears  in  the  paper  marked  C,  and  the  Chancellor  by  his  said 
order  has  directed  the  defendant  Robert  L.  Annan,  and  also  the 
said  William  Long,  trustees  as  aforesaid,  to  pay  to  the  plain- 
tiff in  this  action  the  said  sum  of  $48  88,  as  aforesaid,  with  in- 
terest in  proportion  as  it  has  been  or  may  be  received.  That 
after  all  the  proceedings  aforesaid,  the  plaintiff  in  this  action 
brought  suit  in  the  name  of  the  State  of  Maryland  for  his  use 
against  the  said  Robert  L.  Annan,  \hz  defendant,  on  the  said 
bond  given  by  him  as  one  of  the  said  trustees  for  the  faithful 
performance  of  his  trust,  to  recover  his  distributive  share  of 
the  proceeds  of  the  sale  of  the  real  estate  of  the  said  Solomon 
Kephart,  with  interest  thereon  as  aforesaid.  It  is  admitted  that 


OF  MARYLAND.  453 


State  use  Oyster  vs.  Annan. — 1829. 


no  part  of  the  money  due  to  the  plaintiff  as  aforesaid  has  been 
paid  by  the  defendant  or  any  other  person.  It  is  admitted  that 
the  Chancellor  of  Maryland,  at  the  time  he  passed  said  order 
on  exhibit  C,  had  full  and  competent  authority  to  pass  said  or- 
der, and  the  same  was  legally  passed  by  him.  If  upon  this 
statement  of  facts  the  court  shall  be  of  opinion  that  the  plaintiff 
is  entitled  to  recover,  judgment  is  to  be  entered  up  for  the  plain- 
tiff for  the  penalty  of  the  bond  to  be  released  on  the  payment 
of  the  sum  of  $48  88,  with  interest  in  proportion  as  it  has  been 
or  may  be  received,  and  costs  of  this  suit.  If  the  court  shall 
be  of  opinion  that  the  plaintiff  is  not  entitled  to  recover,  the 
judgment  of  non  pros  is  to  be  entered.  Both  plaintiff  and  de- 
fendant reserves  the  right  of  taking  an  appeal  to  the  Court  of 
Appeals  upon  the  judgment  of  the  court." 

On  the  above  statement,  the  County  Court  gave  judgment  for 
the  defendant,  and  the  plaintiff  appealed  to  this  court. 

The  case  was  submitted  on  notes. 

Boyle  and  Pigman  for  the  appellant.  The  only  point  in  the 
cause,  is  whether  the  plaintiff  was  bound  to  give  notice  to  the 
defendant,  of  the  Chancellor's  order  to  pay  the  money,  and  de- 
mand it,  before  he  can  maintain  his  action  on  the  trustees  bond? 

The  case  stands  upon  a  statement  of  facts  agreed  to  by  the 
plaintiff  and  defendant.  This  case  will  settle  a  very  important 
principle,  and  rule  of  practice,  as  to  the  right  of  suing  on  ad- 
ministration bonds. 

The  bond  will  be  found  in  the/record,  and  the  courts  atten- 
tion is  called  to  the  condition.  It  is  the  usual  condition  for  the 
performance  of  duties  imposed  by  the  original  decree,  or  that 
may  be  put  upon  the  trustees  by  any  future  order  by  the  Chan- 
cellor. The  condition  does  not  provide  that  notice  shall  be  first 
given  of  the  decree,  or  order,  before  action  shall  be  maintained. 
It  was  therefore  no  part  of  the  undertaking  or  contract,  that  no- 
tice should  be  given  to  enable  a  distributee  to  maintain  his  ac- 
tion. The  Chancellor's  order  does  not  require  notice  to  be 
given  at  all — what  then  makes  notice  necessary  to  enable 
the  plaintiff  to  maintain  his  suit  ?  There  is  no  law  requiring 


454          CASES  IN  THE  COURT  OF  APPEALS 

State  use  Oyster  vs-  Annan. — 1829. 

it;  you  must  amplify  the  law,  the  contract,  and  the  order  of 
the  Chancellor,  before  you  can  require  any,  further  notice 
of  the  cause  of  action,  than  was  given  by  the  writ  of  capiai 
which  originally  issued  in  the  case.  The  rule  as  to  notice  to  be 
given  by  one  party  to  another  before  action,  is  this;  where  the 
thing  is  more  in  the  knowledge  of  the  plaintiff  .than  defendant, 
plaintiff  is  bound  to  give  notice,  but  where  each  party  have  the 
same  knowledge,  notice  is  not  necessary,  for  the  cases  on  this 
point,  the  court  is  referred  to  1  Chitty  Pleadings,  320.  Now 
the  dispute  in  this  cause  is  between  trustees,  officers  appointed 
by  the  Chancellor,  and  one  of  the  distributees.  The  Chancellor 
orders  the  auditor  to  state  an  account  current  between  the  trus- 
tees, and  the  estate  of  Solomon  Kephart.  This  the  auditor 
does,  and  after  taking  out  costs,  &c.  distributes  the  money  among 
the  creditors,  and  reports  to  the  Chancellor,  who  confirms  his  re- 
port. The  plaintiff  sees  the  sum  of  $48  88,  distributed  to  him,  as 
one  of  the  creditors,  he  knows  by  enquiring,  and  the  defendant 
might  have  known  the  same,  by  adopting  the  same  means.  It 
is  true  that  it  is  usual,  when  the  Chancellor  intends  to  bring  an 
individual  into  contempt  for  disobeying  his  order,  to  insert  a  pro- 
vision to  give  notice  by  serving  the  order.  But  the  order  in 
this  case  was  to  enable  the  distributees  to  sue  the  bond  if  the 
money  was  not  paid.  Cases  may  be  found  in  England  where 
notice  is  necessary  to  bring  the  party  into  contempt  for  diso- 
bedience, as  for  not  bringing  money  into  court,  &c.  But 
our  form  of  trustees  bond  is  peculiar,  and  the  rights  of  the 
parties  are  defined  in  the  condition,  and  the  Act  of  Assembly 
under  which  it  is  given. 

F.  A.  Schley  for  appellee. 

In  this  case  the  defendant  and  William  Long  were  appointed 
by  the  Chancellor,  trustees  to  sell  the  real  estate  of  Solomon 
Kepkart  to  pay  his  debts,  and  they  executed  their  joint  and 
several  bonds  with  two  securities,  conditioned  to  perform  the 
trust  reposed  in  them  by  the  decree,  or  to  be  reposed  in  them 
by  any  future  decree  or  order  in  the  premises.  The  decree 
directs  the  trustees  to  bring  the  money  into  court  arising  from 


OF  MARYLAND.  455 


State  use  Oyster  vs.  Annan. — 1829. 


the  sale,  "  or  to  pay  it  away  under  tJie  direction  of  the  Chan- 
cellor." The  land  was  sold  in  1815.  The  creditors  being 
numerous,  eighty-two  in  number,  were  litigating  their  claims 
in  Chancery  for  years,  and  did  not  get  them  adjusted  until 
1820.  On  the  18th  January,  1820,  the  auditor  made  his  re- 
port, and  it  was  finally  ratified,  and  the  trustees  ordered  to  pay 
over  the  proceeds  of  sale  accordingly.  Of  this  order  the  trus- 
tees had  no  notice,  whatever,  they  residing  twenty  miles  beyond 
Frederick,  and  the  order  passed  at  Annapolis  by  the  procure- 
ment of  the  counsel  for  the  creditors,  as  soon  as  the  order  was 
passed,  the  counsel  for  the  creditors  to  the  number  of  eight  or 
ten,  got  a  copy  of  the  auditor's  report,  and  without  informing 
the  trustees  of  it,  or  affordiug  them  any  opportunity  to  dis- 
charge their  trust,  he  immediately  issued  four  separate  writs,  in 
each  case  against  the  two  trustees  and  their  two  securities,  on 
behalf  of  each  of  these  eight  or  ten  claimants,  making  from 
thirty-five  to  forty  suits,  to  recover  the  amount  of  these  claims. 
The  writs  were  issued  on  the  20th  February,  1820.  No  notice 
was  given  to  the  trustees  of  the  Chancellor's  order,  and  no  de- 
mand made  upon  them  for  the  money.  The  service  of  the 
writs  was  the  first  notice  they  had  that  the  plaintiffs  were  even 
creditors  of  Kephart,  whose  estate  they  had  sold.  Nor  did 
they  know  this  until  they  went  to  the  plaintiff's  counsel,  to  see 
a  copy  of  the  audit. 

The  question  is,  were  the  trustees  entitled  to  notice  from,  or 
a  demand  by  the  creditors  before  they  were  liable  to  be  sued  ? 
Or  has  the  creditor  the  right,  immediately  on  the  ratification  of 
the  sale  to  institute  a  suit  on  th£  trustees  bond,  without  any  no- 
tice or  demand,  or  any  opportunity  afforded  them  to  pay  with- 
out being  sued? 

This  question  is  -res  Integra  in  Maryland.  The  court,  and 
that  too  of  the  last  resort,  are  now,  for  the  first  time  called  on 
to  settle  the  law  in  this  State,  as  to  the  liability  of  trustees  appoint- 
ed by  the  Chancellor.  It  is  an  important  question,  as  its  decision 
will  prescribe  the  duties,  and  fix  the. liabilities  of  a  numerous 
class  of  agents,  which  the  interests  of  creditors,  and  the  con- 
venience of  our  courts  make  necessary. 


456         CASES  IN  THE  COURT  OF  APPEALS 

State  use  Oyster  vs.  Annan. — 1829. 

The  sale  of  lands  by  trustees  in  the  country,  instead  of  a  sale 
in  the  Chancery  office,  by  a  master  in  Chancery,  is  a  great  con- 
venience and  of  great  advantage  to  the  parties  concerned.  In- 
stead of  being  made  in  the  Chancery  office  as  in  England  and 
JVew-York,  it  is  made  on,  or  in  the  immediate  neighbourhood  of 
the  property,  where  it  is  best  known,  and  bidders  most  likely 
to  attend.  The  court  should  therefore  be  cautious  to  establish 
no  rule,  which  by  its  oppressive  operation  would  be  likely  to 
deter  persons  from  becoming  trustees.  "It  is  a  rule  of  law  foun- 
ded on  the  first  principles  of  natural  justice,  that  no  judgment 
shall  be  pronounced  against  one  who  has  not  had  notice  given 
of  the  proceedings,  and  had  an  opportunity  to  defend  himself." 
2  Stark.  Ev.  977.  "Trustees  acting  bona  fide,  are  always 
treated  with  liberality  and  indulgence."  4  Johns.  Ch.  Rep.  628, 
629.  Would  the  court  establish  a  rule  under  which  a  trustee 
could  by  no  ordinary  and  practicable  diligence,  and  with  fair 
bona  fide  intentions  to  execute  his  trust,  protect  himself  from 
costs  and  losses  which  would  be  ruinous  ? 

If  such  a  rule  is  established,  who  would  assume  the  unreason- 
able and  ruinous  responsibility  of  a  trustee  ?  Creditors  fre- 
quently become  restless  and  querulous,  when  they  can  not  get 
their  claims  adjusted  in  Chancery,  and  charge  the  delay  on  the 
trustee,  although  he  has  nothing  to  do  with  the  adjustmeutof  the 
claims.  It  is  the  duty  and  the  act  of  the  creditors.  The  ad- 
justment as  to  the  trustee,  is,  res  inter  alias  acta.  He  is  no  par- 
ty, and  can  in  no  way  interfere.  In  this  state  of  dissatisfaction 
all  might  sue  the  trustee,  as  soon  as  the  order  was  passed,  and 
ruin  him  by  costs  without  affording  him  the  opportunity  to  com- 
ply with  the  order  although  ready,  willing  and  anxious.  This 
would  be  strange  indulgence  and  tenderness  to  trustees ! !  In 
England  as  in  this  State,  a  Court  of  Chancery  enforces  its  orders, 
and  decrees,  by  attachment,  &c.  The  party,  however,  must  first 
be  in  contempt,  but  he  cannot  be  in  contempt,  until  he  refuses  to 
perform  the  order  or  decree,  and  he  cannot  refuse  until  he  is 
called  on  to  perform.  "And  this  must  always  be  done  by  serv- 
ing a  copy  of  the  order  or  decree  on  him,  to  give  him  the  oppor- 


OF  MARYLAND.  457 

State  use  Oyster  vs.  Annan. — 1829. 

tunity  to  perform."    Wyatfs  Prac.  Reg.  298.  Hindes^  Prac.  494. 
1  Harr.  Ch.  443.     2  Harr.  Ch.  141. 

This  rule  is  founded  on  common  sense  and  common  justice. 
Money  paid  into  court,  cannot  be  withdrawn  by  the  person  enti- 
tled, unless  under  an  order  for  that  purpose,  which  must  be  serv- 
ed on  the  accountant  general.  Wyatt,  284.  2  Harr.  Ch.  Prac. 
142.  In  Maryland,  the  money  if  deposited  in  bank,  could  not  be 
drawn  out  by  a  creditor  or  person  entitled,  except  by  an  appli- 
cation to  the  Chancellor,  who  would  order  a  check  on  the  bank, 
or  rather,  order  the  cashier  of  the  bank  to  pay  the  money. 
This  order  or  check,  must  be  served  or  presented  to  the  cashier, 
and  is  notice  to  the  bank. 

If  ready  and  willing  to  pay,  he  ought  to  have  the  opportunity, 
afforded  him.  Sheer  justice  demands  this,  to  say  nothing  about 
equity.  The  party  or  creditor  has  two  remedies ;  he  may  either 
proceed  by  way  of  attachment  against  the  trustee  alone— or  he 
may  sue  on  the  bond  and  include  the  securities. 

In  either  case,  however,  the  trustee  must  be  in  default.  He 
must  have  done  that  which  would  amount  to  a  refusal  to  obey 
the  court's  order,  to  a  contempt  of  the  court.  If  a  suit  is  brought, 
there  must  be  an  averment  in  the  pleadings  that  the  trustee  had 
notice  of  the  Chancellor's  order.  See  the  pleadings  in  a  similar 
case,  in  3d  Johnson* s  Cases,  53,  The  People  vs.  Bryan. 

In  all  cases  of  a  similar  kind  found  in  the  books,  notice  of  the 
order  is  averred,  either  in  the  declaration,  or  replication. 

An  attorney,  who  is  an  officer  of  the  court,  cannot  be  sued 
for  money  in  his  hands  as  attorney /until  a  demand  is  made  upon 
him,  and  he  has  thus  an  opportunity  afforded  him  to  pay  out.  5 
Cowen.  Rep.  376.  And  in  this  case  he  is  called  a  trustee  by  the 
court.  He  holds  the  money  in  his  fiduciary  character.  Can  the 
trustee  be  considered  as  any  thing  more  than  an  agent  of  the  court? 
The  Court  of  Chancery  have  so  decided,  and  have  said,  that  in 
the  sale  of  lands,  he  is  the  mere  agent  of  the  court,  and  the  con- 
tract not  binding  on  the  court  until  they  have  ratified  it. 
He  is  then  nothing  more  than  the  agent  to  make  the  sale,  and 
the  agent  to  pay  away  the  money.  If  so,  then  he  is  protected 
by  the  settled  principles  of  law,  that  "  an  agent  or  factor  selling 
VOL.  I.— 58. 


IV          <    v-KS  IN  THE  COURT  OF  APPEALS 
State  us«  Oyster  vs.  Annan. — 1329. 

goods  consigned  to  him,  cannot  be  sued,  until  he  is  ordered  how 
he  is  to  pay  it,  to  whom  he  is  to  pay  it,  and  has  refuted  or  ne- 
glected. 10  Johns.  Rep.  285.  See  the  precedent  of  a  declara- 
tion in  such  cases,  3  Chitty  Plea.  178,  179.  If  goods  are  con- 
signed to  a  factor  to  sell  on  commission,  there  must  be  a  demand 
by  the  principal  for  the  money  of  those  sold,  and  for  the  goods 
••old.  And  an  action  does  not  lie  against  him  for  not  account- 
ing,  till  afttr  a  demand  made  for  an  account.  1  Taunt.  572. 
The  condition  of  the  bond  is  to  perform  the  trust  reposed  in 
them,  or  to  be  reposed  in  them  by  any  future  order  or  decree — 
the  decree  to  pay  away  the  money  arising  from  the  sale,  under  the 
direction  of  the  Chancellor.  How  can  the  trustees  know  what 
\be  further  order  of  the  court  is,  or  what  are  their  directions  until 
such  order  or  directions  are  shewn  to  them,  and  that  too  by  the 
parties  entitled  to  the  benefit  of  the  order,  and  competent  to  re- 
ceive and  release.  The  trustees  do  not  stand  in  the  relation  of 
debtors  and  creditors.  They  are  the  mere  agents  of  the  court. 
The  hands  by  which  the  court  for  its  own  convenience,  and  the 
convenience,  and  very  great  convenience  too  of  creditors,  pay 
away  funds  under  its  coatroul.  As  before  observed,  the  ad- 
justment of  the  creditors  claim,  is,  as  to  them,  "res  inter  alias 
oeta."  They  are  not  parties  and  can  in  no  way  interfere. 
They  cannot  even  know  who  are  the  claimants,  until  the  audit 
is  closed  and  ratified. 

The  argumentumab  inconrenienti,  applies  with  resistless  force; 
for  if  the  trustees  are  to  be  regarded  as  debtors  to  the  creditors, 
then  they  must  seek  out  the  creditors.  They  must  go  to  every 
county  in  the  State,  or  every  state  in  the  Union,  nay,  to  Europe 
itself,  if  the  creditors  are  thus  dispersed,  to  pay  them;  otherwise 
to  be  subjected  to  suits  and  costs.  Costs  that  would  be  absolute 
ruin  to  them.  In  this  case,  we  see  the  ruinous  consequences  which 
might  be  visited  upon  these  trustees,  although  ready  and  willing 
to  pay. 

There  are  eighty-two  claims.  Each  claimant  may  bring  four 
suits,  the  bond  being  several.  This  would  make  the  aggregate 
of  three  hundred  and  twenty-eight  suits,  which  at  five  dollars 
and  fifteen  cents  to  each,  would  produce  an  aggregate  of  costs 


OF  MARYLAND.  459 


State  use  Oyster  vs.  Annan — 1829. 


equal  to  one  thousand  six  hundred  and  ninety-eight  dollars  and 
twenty  cents ! !  And  this  too  is  the  Imcest  amount  of  costs  the 
trustees  could  escape  with,  if  they  were  to  go  to  each  creditor 
and  pay  them  as  soon  as  the  ^vrits  were  served.  The  court 
will  see  that  the  claim  of  Jacob  Eversall  in  only  $16  10.  John 
Sawyer,  $19  12,  for  which  suits  were  brought,  and  if  the  trus- 
tees are  compelled  to  pay  the  costs  of  these  suits,  they  will 
amount  to  more  than  the  principal,  that  is,  the  costs  in  each 
case  will  amount  to  $22  60. 

There  is  one  of  the  claimants,  named  John  Kennedy.  This 
claim  amounts  to  nineteen  cents,  now,  can  it  be  possible  that  the 
trustees  could  be  compelled  to  ride  over  the  State  to  find  J\lr. 
Kennedy  to  pay  him  these  nineteen  cents,  or  be  liable  to  be  sued 
with  four  writs,  and  made  to  pay  S22  60  costs.  Impossible  ! 

The  whole  net  amount  of  sales  is  only  $2075.  Yet,  if 
all  the  claimants  had  sued,  as  soon  as  the  audit  was  ratified,  the 
trustees  might  have  been  compelled  according  to  the  plaintiffs 
idea,  to  pay  nearly  the  whole  of  this  sum  in  costs.  If  the  trus- 
tees are  not  entitled  to  notice,  to  the  service  of  a  copy  of  the 
audit,  or  the  Chancellor's  order,  they  cannot  protect  themselves 
from  these  ruinous  consequences,  no,  not  even  though  they  take 
their  seats  at  the  Chancellor's  elbow,  and  wait  there  for  years,  to 
know  when  the  order  will  be  passed ;  for  if  they  go  to  pay  a 
creditor  in  Baltimore,  Finley  and  Taylor,  for  instance,  they 
may  be  sued  while  they  are  in  the  act  of  paying  there,  by  the 
present  very  vigilant  plaintiffs  in  Frederick.  No  willingness,  no 
diligence,  no  readiness  to  pay  can  save  them;  it  is  morally  im- 
possible  for  them  to  protect  themselves  from  ruinous  costs,  if  the 
creditors  are  so  disposed,  and  yet,  I  have  always  understood  it  to 
be  a  maxim  of  the  law  of  common  sense  and  common  justice,  that 
lex  neminem  cogit  ad  impossibilia.  If  it  be  said  that  trustees 
may  relieve  themselves  from  these  difficulties,  these  ruinous 
consequences,  by  paying  the  money  into  court.  The  answer  is, 
that  this  would  produce  such  great  inconvenience  to  creditors, 
that  all  the  benefit  arising  to  creditors  and  others,  from  trustees 
residing  near  them  and  near  the  property  sold,  would  be  lost. 
The  creditors,  though  residing  in  JIUeghany  or  Worcester, 


460          CASES  IN  THE  COURT  OF  APPEALS 

State  use  Oyster  vs.  Annan. — 1829. 

would  have,  each  one,  to  go  to  Annapolis  to  the  Chancellor  for 
a  check  or  order,  for  the  amount  of  his  claim,  however  small.  I 
cannot  believe  the  court  will  establish  a  rule  producing  such  se- 
rious inconveniences  to  suitors  and  claimants,  when  a  rule  obvia- 
ting every  inconvenience  to  all  parties,  and  based  upon  reason, 
equity,  and  sheer  justice,  is  equally  in  their  power.  Surely  a 
creditor  ought  to  be  satisfied,  and  can  have  no  right  to  complain 
if  he  is  paid  his  money  when  he  asks  for  it.  Surely  a  trustee 
ought  to  be  protected,  both  by  courts  of  law  and  courts  of 
equity — for  they  are  both  courts  of  justice — when  he  has  acted 
bona  fide,  when  he  is  ready,  willing  and  anxious  to  discharge 
his  trust ;  when  he  says,  present  me  the  order  that  I  may  know 
what  it  is,-  and  to  whom  I  am  to  pay,  and  I  am  ready  to  per- 
form— the  money  is  in  my  pocket,  and  has  been  there  for  some 
time  waiting  for  this  order.  The  condition  of  the  bond  is,  to 
perform  the  trust  reposed  in  them.  The  court,  in  ascertaining 
whether  they  have  violated  the  condition  by  not  performing  the 
trust,  will  give  to  their  acts  a  reasonable  construction.  NThey 
will,  before  they  will  suffer  a  suit  to  be  sustained,  ascertain  ond 
be  satisfied  that  the  trustees  have  been  in^default,  and  although 
they  do  not,  being  a  court  of  law,  proceed  by  way  of  attach- 
ment, yet,  as  the  Chancellor  would  not  have  granted  an  attach- 
ment until  the  trustees  were  in  default,  and  he  would  never  con- 
sider them  in  default  for  a  disobedience  to  his  order,  until  they 
know  what  that  order  was,  so  a  court  of  law  will  construe  the 
trust,  and  ascertain  the  duties  and  default  of  the  trustees  by  the 
same  rules  of  reason  and  justice,  and  will  not  consider  the  acts 
of  the  trustees  as  a  breach  of  the  trust,  so  as  to  subject  them  and 
their  securities  to  suits  on  the  bond  for  the  penalty,  unless  on  the 
same  evidence,  if  they  were  sitting  as  Chancellors,  they  would 
grant  an  attachment.  The  court  in  ascertaining  the  duties  and 
obligations  of  parties,  are  always  governed  by  rules  of  justice 
and  reason.  Thus  when  a  party  endorses  a  note,  he  does  not 
specify  in  his  contract  that  he  shall  have  notice  of  the  non-pay- 
ment by  the  drawer,  before  he  will  be  bound,  yet  the  courts 
in  fixing  his  liability,  in  construing  his  contract  have  said,  it 
is  reasonable  that  he  should  have  notice,  and  if  the  holder  does 


OF  MARYLAND.  461 


State  use  Oyster  us.  Annan. — 1829. 


not  give  it  to  him,  he  is  not  bound  by  his  endorsement — he  is 
not  liable  to  be  sued.  So  in  the  case  of  notes  and  accounts 
assigned  to  another  in  payment  of  debts,  it  has  been  held  by 
the  courts,  that  the  assignee  must  use  due  diligence  in  the  col- 
lection of  them,  or  the  assignor  is  not  answerable  on  the  original, 
because  they  say  it  is  reasonable  that  such  diligence  should  be 
used  for  the  protection  of  the  assignor.  And  so  in  many  other 
analagous  cases,  the  court  in  fixing  liability,  and  ascertaining 
and  determining  what  shall  constitute  a  breach  of  duty,  and 
what  not,  are  influenced  by  the  principles  of  reason  and  jus- 
tice. The  trustees  in  this  case  only  ask  to  have  their 
duties  ascertained  by  these  principles,  believing  as  they  do, 
that  they  will  not  convict  them  of  a  breach  of  trust  in  the  non- 
performance  of  an  order,  the  existence  of  which  they  never 
knew,  and  the  performance  of  which  they  never  refused,  and 
the  knowledge  of  which  they  could  not  have  procured  by  any 
ordinary  diligence,  to  save  themselves  from  the  clouds  of  suits 
with  which  they  are  covered,  every  one  of  which  they  would 
have  prevented,  if  the  creditors  had  only  called  on  them  for 
their  money,  or  given  them  notice  that  the  audit  was  made  out. 
The  court  are  to  say  what  were  the  duties  of  these  trustees,  in 
the  proper  discharge  of  their  trust,  what  it  was  reasonable,  and 
right,  and  equitable  to  expect  of  them.  They  are,  by  their 
bond,  to  perform  the  trust  reposed  in  them.  Did  this  trust  re- 
quire them,  as  soon  as  the  audit  was  made  out,  to  take  it  in  one 
hand  and  the  trust  fund  in  the  other,  and  ride  through  the  coun- 
try, State,  or  United  States,  as  tKe  creditors  might  be  dispersed, 
to  pay  each  one  his  claim  ?  'If  it  did,  then  they  are  liable  to 
this  suit,  and  might  be  sued  in  one  hour  after  the  Chancellor's 
order,  by  one  hundred  creditors,  if  there  were  so  many,  and  totally 
ruined,  uno  jlatu.  But  if,  on  the  contrary,  the  trustees  are  en- 
titled to  notice  of  the  order  ;  if  they  are  entitled  to  an  opportuni- 
ty to  pay,  by  having  the  order  shewn  to  them  by  the  person  en- 
titled to  receive,  or  his  agent  or  attorney,  who  may  be  author!- 

*ir 

sed  to  give  a  receipt  or  release.  If  they  are  to  be  as  much 
favored  as  the  bank,  which  holds  the  funds  of  the  Court  of 
Chancery,  if  they  are  not  to  be  required  to  do  more  than  to  use 


462          CASES  IN  THE  COURT  OF  APPEALS 

State  use  Oyster  vs.  Annan. — 1829. 

ordinary  diligence,  to  act  bonajide,  and  to  be  ready  and  willing 
to  pay  whenever  called  on,  or  whenever  the  courts  order,  which 
they  are  to  obey,  is  shewn  to  them  by  the  party  entitled  to  re- 
ceive and  release.  If,  in  truth,  they  are  not  to  be  required  to  per- 
form impossibilities,  then  they  are  not  liable  to  the  suits  which 
have  been  brought  against  them,  of  which  the  present  is  one. 

EARLE,  J.  delivered  the  opinion  of  the  Court. 

This  suit  was  brought  by  a  creditor  on  the  bond  of  a  trustee 
appointed  by  the  Chancellor,  to  sell  the  real  estate  of  a  de- 
ceased person  for  the  payment  of  his  debts.  The  statement 
agreed  on  between  the  parties  gives  a  full  account  of  the  pro- 
ceedings of  the  trustee  in  Chancery,  from  the  acceptance  of 
his  trust,  to  the  confirmed  report  of  his  sale,  and  the  Chancel- 
lor's order  of  distribution  of  proceeds  among  the  creditors.  The 
action  was  instituted  within  a  month  after  the  order,  and  the 
complaint  is  that  the  plaintiff's  proportion  of  the  avails  of  the 
sale  was  sought  without  giving  to  the  defendant,  any  previous 
notice  of  the  final  proceedings  of  the  Chancellor. 

We  have  given  to  this  case  a  further  consideration,  and  after 
£n  examination  of  the  authorities,  we  are  inclined  to  think  our 
first  impressions  of  it  were  not  correct.  The  trustee  as  to  the 
suit  is  not  in  the  situation  of  a  common  debtor,  who  knows  his 
Jiability,  and  whose  business  it  is  to  look  to  a  compliance  with 
his  engagement;  nor  is  his  predicament  like  that  of  an  executor 
pr  administrator,  who  represents  the  deceased  testator,  or  intes- 
tate, in  all  and  each  of  his  contracts,  and  to  whom  the  creditors 
individually  are  to  exhibit  their  claims  for  settlement.  The 
creditors  are  known  to  the  trustee  but  through  the  medium  of 
the  Court  of  Chancery,  where  they  file  their  respective  demands 
to  be  adjusted  by  the  auditor,,  and  where  disputes  among  them 
are  disposed  of  by  the  Chancellor,  who  finally  determines  what 
proportion  of  the  sum  of  money  reported,  is  to  be  paid  to  each 
qf  them.  This  proceeding  as  to  the  trustee,  is  res  inter  alias 
acfa,  and  it  is  but  reasonable  that  when  it  terminates  he  shall  be 
notified  of  the  result,  before  any  steps  are  taken  against  him, 
either  by  attachment,  or  by  action  on  his  trustees  bond,  against 


OF  MARYLAND.  463 

Crane  vs.  Meginnis. — 1829. 

him,  and  his  sureties.  In  the  case  of  an  order  for  distribution 
and  payment,  similar  to  this,  to  sustain  the  plaintiff's  suit,  it  ap- 
pears to  us  therefore,  that  he  ought  to  aver  and  prove  a  service 
of  the  order  on  the  trustee,  and  a  demand  of  payment  of  the  sum 
specified  therein;  and  that  without  this  notice  so  averred  in  the 
proceedings,  an  action  on  the  trustees  bond  cannot  be  maintained. 
Fid.  3  Johns.  Cases,  53. 

The  court  mean  to  confine  this  decision  to  an  order  for  dis- 
tribution and  payment  by  the  Chancellor,  and  with  this  under- 
standing the  judgment  of  the  court  below  is  affirmed. 

JUDGMENT  AFFIRMED. 


CRANE  vs.  MEGINNIS — Court  of  Appeals,  Eastern  Shorey 
June  term,  1829. 

The  constitution  of  this  State  composed  of  the  declaration  of  rights,  and  form 
of  Government,  is  the  immediate  work  of  the  people  in  their  sovereign  ca- 
pacity, and  contains  standing  evidences  of  their  permanent  will.  It  por- 
tions out  supreme  power,  and  assigns  it  to  different  departments,  prescrib- 
ing to  each  the  authority  it  may  exercise,  and  specifying  that,  from  the  ex- 
ercise of  which  it  must  abstain. 

The  public  functionaries  move  in  a  subordinate  character,  and  must  conform- 
to  the  fundamental  laws  or  prescripts  of  the  creating  power.  When  they 
transcend  defined  limits  their  acts  are  unauthorised,  and  being  without  war- 
rant, are  necessarily  to  be  viewed  as  nullities. 

The  legislative  department  is  nearest  to  the  source  of  power,  and  is  mani- 
festly the  predominant  branch  of  the  Government.  Its  authority  is  exten- 
sive and  complex,  and  being  less  susceptible  on  that  account  of  limitation, 
is  more  liable  to  be  exceeded  in  practice. 

Its  acts  out  of  the  limit  of  authority  assuming  the  garb  of  law,  will  be  pro- 
nounced bullities  by  the  Courts  of  Justice  ;  it  being  their  province  to  decide 
upon  the  law  arising  in  questions  judicially  before  them,  and  upon  the  con- 
stitution as  the  paramount  law. 

The  check  to  legislative  encroachments  is  to  be  found  in  the  declaration 
that  the  legislative,  executive  and  judicial  powers,  ought  to  be  kept  sepa- 
rate and  distinct;  and  the  solemn  obligations  of  fidelity  to  the  constitution 
under  which  all  legislative  functions  are  performed. 

Divorces  in  this  State  from  the  earliest  times  have  emanated  from  the  Gen- 
eral Assembly,  and  can  now  be  viewed  in  no  other  light,  than  as  regular 
exertions  of  legislative  power. 

The  suit  for  alimony  in  this  State  is  a  distinct  remedy  from  the  proceedings 
to  obtain  a  divorce,  and  for  a  series  of  years  the  wife's  maintenance  has 
been  recoverable  through  the  intervention  of  our  judicial  tribunals. 


mi          CASES  IN  THE  COURT  OF  APPEALS 

Crano  vs.  Meginnis. — 1829. 

A  divorced  wife  may  recover,  (having  merits)  a  maintenance  suitable  to 
her  station  in  life,  and  to  quadrate  with  the  situation  of  her  husband,  by  a 
bill  in  Chancery. 

The  3d  section  of  the  act  of  1823,  ch.  95,  by  which  the  legislature  required  a 
husband  to  pay  a  trustee  for  the  use  and  benefit  of  his  wife,  from  whom 
such  act  divorced  him,  a  sum  certain  annually,  is  an  exercise  of  judicial 
authority ,  repugnant  to  the  constitution  of  Maryland  and  void. 

APPEAL  from  Kent  County  Court.  This  was  an  action  of 
Jlssumpsit,  brought  by  the  appellant  as  trustee  of  M ary  Megin- 
nis, to  recover  the  sum  of  $150,  being  the  first  semi-annual  in- 
stalment of  an  annuity  directed  by  an  act  of  the  General  Assem- 
bly of  Maryland,  to  be  paid  the  said  appellant  by  the  appellee, 
for  the  use  of  the  said  Mary. 

The  declaration  stated,  "that  whereas  heretofore,  to  wit,  at 
a  session  of  the  General  Assembly  of  Maryland,  begun  and 
held  at  the  city  of  Jlnnapolis,  on  the  first  Monday  of  the  month 
of  December,  in  the  year  1823,  by  a  certain  act  of  the  said 
General  Assembly,  entitled  'an  act  for  the  relief  of  Mary  Me- 
ginnis, it  was  amongst  other  things  enacted,  that  the  said  Cas- 
parus Meginnis,  should  from  the  passage  of  the  said  act,  be 
and  he  was  thereby  altogether  deprived,  of  all  and  every  inter- 
est, authority,  power  and  control  in,  over,  and  to  the  person  of 
Mary  Meginnis,  his  wife,  as  fully  as  if  she  had  never  been 
married;  and  that  the  said  Mary  should  be,  and  she  was  there- 
by declared  capable  to  have,  hold,  take,  receive,  sue  for,  and 
recover,  by  compromise,  suit  or  suits,  in  law  or  equity,  proper- 
ty of  any  kind  whatever,  real,  personal,  or  mixed,  in  as  full, 
and  ample  a  manner,  as  if  she  was  a  feme  sole,  and  to  use  and 
enjoy,  or  dispose  of  the  same,  at  her  will  and  pleasure,  and 
might  in  her  own  name  sue  and  be  sued  as  if  she  was  a  jcme 
sole;  and  the  said  Casparus  should  annually  thereafter  pay  to 
the  said  John  Crane,  who  was  thereby  made  trustee  in  that  be- 
half, to  and  for  the  use  and  benefit  of  the  said  Mary,  the  sum 
of  $300,  in  two  equal  instalments,  the  first  on  the  first  day  of 
March,  and  the  second  on  the  first  day  of  September,  in  each 
and  every  year,  during  the  joint  lives  of  the  said  Casparus,  and 
Mary,  and  the  said  trustee  should  be  authorised  to  institute 


OF  MARYLAND.  465 


Crane  vs.  Meginnis. — 1829. 


suit  in  his  own  name  for  any  instalment,  which  should  not  be 
paid  on  the  day  on  which  the  same  was  thereby  declared  to 
be  due,  and  it  should  be  the  duty  of  the  court  before  whom  the 
suit  was  brought  to  try  the  same  at  the  term  to  which  the  writ 
was  made  returnable;  and  that  the  said  Casparus  Meginnis, 
should  not  be  liable  for  any  debts  to  be  thereafter  contracted 
by  the  said  Mary;  and  that  the  annuity  thereby  directed  to  be 
paid  should  cease  on  the  death  of  the  said  Casparus  or  Mary, 
whichever  of  them  should  first  die ;  and  that  nothing  therein 
contained  should  in  any  manner  prevent  the  said  Mary,  if  she 
should  survive  the  said  Casparus,  from  claiming  the  part  or 
share  of  his  estate,  real,  personal  or  mixed,  which  she  would  be 
entitled  to,  if  the  said  act  had  not  passed :  And  that  if  the  said 
John  should  die  or  refuse  or  neglect  to  act  as  trustee,  it  should, 
and  might  be  lawful  for  the  Orphan's  Court  of  Kent  County,  on 
the  application  of  the  said  Mary,  to  appoint  a  trustee  for  her 
benefit,  who  should  thereafter  be  invested  with  all  the  authori- 
ty thereby  given  to  the  said  John,  as  by  the  record  of  the  said 
act  of  Assembly  remaining  of  record  in  the  office  of  the  Clerk 
of  the  Court  of  Appeals  for  the  Western  Shore,  may  more  fully 
and  at  large  appear ;  and  the  said  John  in  fact  saith,  that  after 
making  of  the  said  act  of  Assembly,  the  said  John  took  upon 
himself  the  execution  of  the  said  trusteeship,  and  that  the  said 
Casparus  and  Mary  both  continued  in  full  life  from  and  after 
the  passage  of  the  said  act  of  Assembly,  until  the  first  day  of 
March  in  the  year  1824,  and  still  are  in  full  life,  to  wit:  at 
Kent  County  aforesaid,  by  reason  whereof,  &c.  To  this  declar- 
ation the  defendant  demurred  generally,  and^  the  plaintiff  join- 
ed in  demurrer.  A  pro  forma  judgment  was  rendered  by  the 
County  Court  on  the  demurrer  for  the  defendant,  and  the  plain- 
tiff, appealed  to  the  Court  of  Appeals. 

The  cause  was  argued  at  June  term,  1828,  before  EARLE, 
MARTIN,  STEPHEN,  ARCHER,  and  DORSEY,  J. 

Chambers  for  the  appellant, 

The  objection  urged  against  the  act  of  1823,  ch.  95,  in  virtue 
of  which  the  action  was  instituted,  was  understood  to  arise  out 
of  the  10th  sect,  of  the  1st  article  of  the  Constitution  of  the 
VOL.  1.— 59. 


4(56          CASES  IN  THE  COURT  OF  APPEALS 

Crano  vs.  Meginnis. — 1829. 

United  States,  which  prohibits  the  passage  by  a  State  Legisla- 
ture, of  "any  ex  post  facto  law,  or  laws  impairing  the  obligation 
of  contracts." 

The  act  of  1823,  is  certainly  not  an  ex  post  facto  law.  Such 
a  law  has  relation  to  acts  of  a  party,  not  to  rights  of  property : 
an  enactment  which  makes  that  a  crime  which  was  not  a  crime, 
at  the  period  of  its  commission.  Vid  Celdon  and  wife  vs.  Bull 
and  w/e,  3  Dal.  386.  The  exposition  by  Judge  Chase  and 
Judge  Patterson  as  to  this  provision. 

Nor  does  this  act  impair  the  obligation  of  any  contract  with- 
in the  meaning  of  the  constitution.  Contracts  relating  to  money 
and  property  were  those  only  which  it  was  intended  to  include  in 
these  expressions.  Marriage  contracts  were  never  contemplated. 
It  has  not  heretofore  been  questioned,  and  is  not  now,  that  the  le- 
gislature can  grant  a  divorce,  even  a  divorce  a  wnculo  matrimonii, 
which  not  only  impairs  but  destroys  the  marriage  contract.  It 
is  one  of  those  matters  of  internal  police,  which  the  interests  of 
society  require  should  be  fit  matter  for  legislation,  and  which 
the  States  never  could  have  designed  to  transfer  to  the  general 
government  or  to  surrender.  It  has  been  exercised  at  all  times, 
and  in  most,  if  not  all  the  States.  If  then  the  right  to  grant  di- 
vorces be  vested  in  the  legislature,  it  is  necessarily  an  incident 
to  its  useful  exercise,  that  there  should  also  be  power  to  express 
the  terms  of  the  divorce,  to  arrange  matters  of  property  for 
the  future  subsistence  and  comfort  of  an  injured  wife.  The 
same  solemnity,  and  the  same  obligation  could  be  urged  for  the 
protection  of  the  marital  rights,  which  could  be  urged  for  the 
protection  of  the  rights  of  property.  The  reason  is  not  per- 
ceived why  one  may  be  invaded  by  legislative  interposition,  and 
the  other  be  exempt.  Accordingly,  we  find  such  to  be  the  uni- 
form practice  of  the  legislature,  who  have  by  the  same  act,  as- 
sumed jurisdiction  over  the  estates  of  individuals  so  far  as  to  make 
proper  provision  for  their  future  pecuniary  comfort.  Practice 
and  acquiescence  fix  the  construction,  and  courts  will  not  after- 
wards allow  it  to  be  disturbed.  1  Cranc/i,  299,  Steuart  vs. 
Laird.  A  variety  of  laws  from  an  early  period  of  our  history, 
will  be  found|in  the  statute  book,  and  indeed,  for  many  years, 


OF  MARYLAND.  467 


Crane  vs.  Meginnis — 1829. 


the  law  of  1818,  ch.  203,  enacted  when  some  of  the  most  dis- 
tinguished legal  characters  in  the  State  were  members  of  the 
legislature,  has  been  a  sort  of  formula. 

Should  it  be  urged  that  this  act  assumes  powers,  as'belonging  to 
the  legislative  department  of  the  government,  which  rightfully 
belongs  to  the  judicial  tribunals,  and  therefore  opposed  to  the 
Maryland  Bill  of  Rights,  which  declares  they  shall  be  kept 
separate  and  distinct,  a  great  number  of  acts  may  be  referred 
to,  in  which  judicial  power  to  the  same  extent  has  been  exer- 
cised and  sustained.  In  the  case  of  Garrettson  vs.  Cole,  1  Harr. 
fy  Johns,  391,  the  court  paid  respect  to  a  law  empowering 
the  Court  of  Appeals  to  reinstate  a  cause  after  its  decision. 

Should  a  difficulty  be  made,  because  of  the  summary  pro- 
cess provided  in  this  act,  the  court  will  find  it  obviated  by  the 
case  of  Bank  of  Columbia  vs.  Okely,  4  Wheaton,  235. 

Spencer  and  Bayly  for  the  appellee,  referred  to  2  Burns 
Ecles.  Law,  434.  3  Bla.  Com.  94.  1  Fonb.  Eq.  90,  note  104. 
Duncan  vs.  Duncan,  19  Ves.Jr.  397.  Galmith  vs.  Galmith,  4 
Harr.  $  McH.  477.  The  Act  of  1777,  ch.  12,  sec.  4.  Watkyns 
vs.  Watkyns,  2  Atk.  97.  6  Article  Bill  of  RigJits.  18  Article 
Bill  of  Rights.  Whittington  vs.  Polk,  1  Harr.  fy  Johns.  236, 
242.  Vanhorne's  lessee  vs.  Dorrance,  2  DalL  304  to  307.  1 
Bay's  Rep.  252,  382.  21  Article  of  the  Constitution.  Act  of 
1676,  c/i.21.  1678,  ch.  18. 

Carmichael  on  the  same  side,/contended,  that  the  right  of  a 
court  of  judicature  to  review  /a  law,  when  the  constitutional 
rights  of  a  citizen  had  been  thereby  affected,  had  been  solemn* 
ly  established  in  Maryland,  and  being  admitted  by  the  coun- 
sel for  the  appellant,  it  became  unnecessary  to  refer  to  author- 
ities to  sustain  the  principle.  In  the  sound  and  judicious  exer- 
cise of  this  power  the  people  found  security. 

In  questions  of  this  nature  it  was  necessary  to  refer  to  the 
country  from  which  are  derived  the  principles  of  our  jurispru- 
dence. Claims  for  alimony  were  there  cognizable  in  the  spiri- 


468         CASES  IN  THE  COURT  OF  APPEALS 

Crane  vs.  Meginnis. — 1829. 

tual  courts,  and  under  certain  circumstances  in  thejCourt  of 
Chancery  of  England  obtained  a  hearing. 

The  rules  and  principles  by  which  the  decision  of  cases  of 
this  nature  were  there  regulated,  might  be  found  by  reference 
to  1st  Chitttfs  Black.  441.  3  Ib.  94.  Watkyns  vs.  Watkyns,  2 
.fl/fc.  97.  I  Fonb.  Eq.  94,  note  104.  Duncan  vs.  Duncan,  19, 
Fes.  Jr.  396,  397. 

From  the  researches  of  counsel  it  did  not  appear  in  what 
court  [under  the  colonial  government,  the  claims  for  alimony 
were  considered.  That  such  causes  were  not  heard  and  adju- 
dicated, by  the  Commissary  General  or  his  deputies,  might  be 
inferred  from  the  silence  of  Valletta  in  his  Deputy  Commissary's 
Guide. 

Whether  they  were  in  the  Court  of  Chancery  was  a  question 
to  which  no  evidence  could  be  readily  furnished.  The  only 
case  that  had  been  decided  in  the  Province  is  to  be  found  in 
Galmith  vs.  Galmith,  4  Hair,  fy  M'H.  477,  in  that  case  the 
County  Court  of  Calvcrt  had  heard  and  given  judgment  upon  a 
claim  for  alimony,  which  judgment  was  reversed  by  the  Pro- 
vincial Court. 

By  the  declaration  of  Independence  in  1776,  Maryland  be- 
came a  sovereign,  independent  state  with  general  powers;  the 
limitations  to  the  exercise  of  which  existed  only  in  the  constitu- 
tion and  bill  of  rights.  At  this  period  it  could  not  be  denied, 
that  the  claim  for  alimony  was  within  the  jurisdiction  of  the  le- 
gislature. 

There  was  no  other  tribunal,  before  which  it  could  be  pre- 
sented. No  such  authority  had  then  been  imparted  to  the  ju- 
dicial tribunals,  or  to  the  executive  of  the  State.  But  in  the 
next  year,  the  cognizance  of  claims  for  alimony  was  given  to 
the  Court  of  Chancery.  This  will  be  found  in  the  14  sec.  of  the 
12  cfc.  of  the  Act  of  1111. 

The  right  of  the  wife  to  alimony  did  not  arise  necessarily  on 
separation  from  the  husband.  If  under  the  influence  of  a  per- 
verse and  evil  temper  she  absconds,  or  if  she  elope  with  an 
adulterer,  she  can  sustain  no  claim  for  alimony.  But  wherever 
it  is  claimed,  enquiries  as  to  conduct  of  this  nature,  may  be  in- 


OF  MARYLAND.  409 


Crane  vs.  Meginnis. — 1829. 


stituted;  and  in  1777  the  legislature  feeling  that  such  investi- 
gations, comported  not  with  the  nature  of  the  functions  they 
were  intended  to  discharge,  and  that  justice  to  the  parties  could 
not  be  rendered,  invested  the  Chancellor  with  authority  to  hear 
and  decide  all  questions  of  this  nature.  Meginnis  as  a  free  ci- 
tizen of  Maryland  could  not  be  deprived  of  his  property,  but 
by  the  judgment  of  his  peers,  or  the  law  of  the  land.  This  was 
a  security  extended  by  the  bill  of  rights  to  him,  in  common  with 
the  other  citizens  of  the  State.  Before  a  claim  of  alimony  could 
be  established  against  him,  he  was  entitled  to  a  hearing  of  all 
the  circumstances  of  the  case,  in  the  Court  of  Chancery.  This 
was  secured  to -him  by  the  act  of  1777,  ch.  12,  sec.  14.  This 
was  the  law  of  the  land,  and  any  act  of  the  legislature  depriv- 
ing him  of  this  right  was  a  direct  violation  of  those  first  princi- 
ples upon  which  the  government  is  based.  It  operated  by  rob- 
bing him  of  the  protection  of  the  law  of  the  land;  such  is  the  act 
of  1 823,  ch.  93.  By  this  act  the  legislature  clothed  themselves 
with  powers  vested  in  the  Chancellor  by  the  act  of  1777,  and 
undertook  to  dispose  of  private  rights  which  could  be  affected  by 
them,  only  by  a  violation  of  the  constitutional  rights  of  a  citizen. 
Among  other  evils  that  were  felt  under  the  colonial  govern, 
ment,  were  those  which  arose  from  the  exercise  by  the  English 
colonial  governors  of  all  the  functions  of  government,  executive, 
legislative  and  judicial.  The  bill  of  rights  regarding  the  abuses 
necessarily  incident  to  the  concentration  of  these  powers,  declar- 
ed that  the  legislative,  judicial  and  executive  powers,  shall  be 
kept  for  ever  separate  and  distinct.  In  pursuance  of  this  prin- 
ciple the  act  of  1777  was  passed.  Whether  a  modern  legis- 
lature have  the  constitutional  right  to  repeal  this  law,  and 
clothe  themselves  with  power  to  hear  and  adjudicate  cases  of 
alimony  is  not  the  matter  to  be  decided;  but  it  is  whether  this 
law  being  unrepealed,  and  in  force,  the  legislature  of  1823 
had  the  right,  to  subtract  this  particular  cause  from  the  legal 
tribunals  of  the  State,  make  the  courts  of  a  law  a  registry  for 
their  decisions,  and  impose  upon  them,  the  task  of  giving 
efficacy  to  a  law,  without  the  power  of  enquiring  into  its  justice 
or  legality. 


-170          CASES  IN  THE  COURT  OF  APPEALS 

Crane  vs.  Meginnis. — 1829. 

CJiambcrs  in  reply.  The  sixth  article  in  the  bill  of  rights, 
like  the  other  declaratory  articles  in  the  same  instrument,  was 
int ended  to  assert  a  general  principle.  No  government  ever  did, 
or  ever  can  exist,  in  which  a  precise  verbal  and  literal  execu- 
tion of  that  article  and  others  will  be  found.  Those  who 
framed,  and  those  who  enforced  our  admirable  principles  of 
government,  so  considered  them.  The  47th  number  of  the 
Federalist,  from  the  pen  of  Mr.  Madison,  shews  this  fully. 

It  would  be  an  endless  task  to  cite  to  the  court,  the  numberless 
instances  in  which  the  principle,  if  taken  in  the  latitude  now 
claimed  has  been  impugned.  In  the  very  first  session  after  the 
bill  of  rights  was  framed,  and  when  no  doubt  the  very  men  who 
adopted  it  were  members  of  the  legislature,  we  find  laws  to  revive 
proceedings  in  court, — to  revive  and  aid  proceedings  in  court, — 
to  direct  tJie  recording  of  a  deed.  In  the  next  year,  1778,  laws 
were  made  to  empower  persons  to  sell  land, — to  authorize  a  deed  to 
be  recorded, — to  enable  a  widow  and  executrix  to  sell  her  testator's 
land.  In  1779,  to  revive  and  aid  proceedings  in  Talbot  Court, — 
to  revive  and  continue  actions  and  process  in  Worcester  Court, — 
same  in  Caroline  Court, — to  enlarge  the  powers  of  an  executrix, 
and  to  record  deeds,  and  to  take  depositions.  These  are  acts 
partaking  of  a  judicial  character,  some  in  a  greater  degree,  others 
less,  but  all  more  than  the  case  at  bar.  In  most  of  these  cases, 
there  was  a  plain  and  ample  existing  remedy  through  the  judicial 
tribunals ;  here  there  was  no  power  but  the  legislature  who 
could  administer  remedy  for  the  principal  evil,  and  in  this  exer- 
cise of  exclusive  power  over  the  principal  subject,  they  have 
legislated  also  for  the  accessory.  The  same  system  of  legisla- 
ting, has  been  continued  from  our  primeval  history  to  this  period, 
and  the  labor  or  the  learning  of  the  adverse  counsel  have  not 
produced  the  evidences  of  the  want  of  constitutional  obligation 
in  these  laws.  This  case  of  Steuart  vs.  Laird,  would  seem  to 
make  them  a  contrary  evidence  of  themselves,  being  a  cotempo- 
raneous  construction.  The  sole  object  of  these  declaratory 
principles,  is  to  prevent  the  usurpation  by  one  branch  of  the 
government,  of  such  power  and  jurisdiction  belonging  to  another 
branch,  as  would  consolidate  the  one  and  annihilate  the  other, 


OF  MARYLAND.  471 


Crane  vs.  Meginnis — 1829. 


at  least  to  an  extent  which  would  encourage  the  use  of  arbitra- 
ry power. 

If  this  was  a  case  of  alimony,  distinctly  and  exclusively,  • 
there  would  be  reason  for  the  objection  urged.     It  is  conceded, 
that  the  subject  of  alimony,  is  one  of  judicial  cognizance, 
according  to  the  laws  of  Maryland.     But  alimony    is  not 
recoverable  in  a  case  of  separation  without  divorce. 

The  twenty-first  article  of  the  bill  of  rights  is  subject  to 
the  same  limitation,  as  before  applied  to  the  sixth.  Such  a  case 
as  the  present,  is  not  in  its  contemplation.  Private  property  is 
taken  for  public  service  in  seasons  of  war,  for  roads,  canals,  and 
other  great  exigencies,  and  taken  against  the  will  of  its  owner, 
and  without  any  supposed  violation  of  this  article  in  the  bill  of 
rights.  So  private  property,  and  private  rights,  must  yield  to 
the  more  imperative  claims  of  public  interest,  and  the  proper 
police  of  the  State.  The  marital  rights  acquired  by  the  con- 
tract, are  as  solemnly  secured,  and  as  distinctly  defined,  and  as 
important  in  their  character,  as  the  rights  of  real  or  personal 
property,  and  yet  these  are  affected  and  destroyed,  when  their 
longer  possession  by  the  individual,  conflicts  with  the  great  prin- 
ciples which  regard  the  morals  and  well-being  of  society  :  and 
when  affected,  they  require  of  necessity  the  incidental  operation 
of  the  law  upon  the  pecuniary  rights  of  the  parties.  But  in  this 
case  it  is  contended,  the  law  of  the  land  and  the  judgment  of 
peers,  are  the  instruments  by  which  the  party's  property  is  to  be 
taken  away.  The  act  of  Assembly  is  the  law  of  the  land,  and 
the  trial  by  a  jury  is  secured  to  him. 

There  is  no  evidence  in  this  Case,  that  the  act  passed  without 
the  consent  of  the  husband,  and  to  reject  any  presumption  neces- 
sary to  sustain  the  act  of  the  legislature,  would  be  in  disobe- 
dience to  the  courtesy  and  respect,  which  are  due  from  one 
branch  of  the  government  to  the  other,  according  to  the  princi- 
ples of  both  political  and  municipal  law. 

If  this  power  does  not  reside  in  the  legislature,  it  exists  no- 
where. The  laws  of  Maryland  have  not  conferred  on  any  judi- 
cial tribunal,  the  power  to  divorce  or  separate  husband  and  wife. 
The  legislature  alone,  is  competent  to  exercise  jurisdiction  on 


I7v!          CASES  IN  THE  COURT  OF  APPEALS 

Crano  vs.  Mcginnis. — 1829. 

the  subject,  and  being  in  possession  of  jurisdiction  of  the  prin- 
cipal matter,  can  rightfully  do  whatever  the  peculiar  circum- 
stances of  a  case  may  demand,  and  it  is  a  most  delicate  office  in 
an  inferior  or  co-ordinate  department  of  the  government,  to 
assume,  that  it  has  acted  unadvisedly  and  without  competent 
information  of  the  facts,  or  to  pronounce  its  enactment,  in  viola- 
tion of  the  constitution  or  bill  of  rights. 

EARLE,  J.  at  this  term  delivered  the  opinion  of  the  Court. 

A  constitutional  question  is  involved  in  the  consideration  of  this 
case,  and  before  we  enter  upon  the  solution  of  it,  we  will  state 
some  positions  preliminary  to  the  subject. 

The  constitution  of  this  State,  composed  of  the  declaration  of 
rights  and  form  of  government,  is  the  immediate  work  of  the 
people,  in  their  sovereign  capacity,  and  contains  standing  evi- 
dences of  their  permanent  will.  It  portions  out  supreme  power, 
and  assigns  it  to  different  departments,  prescribing  to  each  the 
authority  it  may  exercise,  and  specifying  that  from  the  exercise 
of  which  it  must  abstain.  The  public  functionaries  move  then 
in  a  subordinate  character,  and  must  conform  to  the  fundamental 
laws  or  prescripts  of  the  creating  power.  When  they  transcend 
defined  limits,  their  acts  are  unauthorised,  and  being  without 
warrant,  are  necessarily  to  be  viewed  as  nullities.  If  consider- 
ed as  valid  acts,  the  distinction  between  unlimited  and  circum- 
scribed authority  is  done  away,  the  derivative  exerts  original 
power,  and  of  constitutional  law  nothing  is  left  but  the  name. 

The  legislative  department  is  nearest  to  the  source  of  power, 
and  is  manifestly  the  predominant  branch  of  the  government. 
Its  authority  is  extensive  and  complex,  and  being  less  suscepti- 
ble on  that  account  of  limitation,  is  more  liable  to  be  exceeded 
in  practice.  Its  acts,  out  of  the  limit  of  authority,  assuming  the 
garb  of  law,  will  be  pronounced  nullities  by  the  courts  of  jus- 
tice; it  being  their  province  to  decide  upon  the  law  arising  in 
questions  judicially  before  them,  and  upon  the  constitution  as  the 
paramount  law;  but  this  is  more  in  fulfilment  of  their  own  duty, 
than  to  restrain  the  excesses  of  a  co-ordinate  department  of  the 
government.  The  check  to  legislative  encroachments  is  to  be 


OF  MARYLAND.  473 


Cran«  vs.  Meginnis — 1829. 


found  in  the  declaration,  that  the  legislative,  executive,  and  ju- 
dicial powers  ought  to  be  kept  separate  and  distinct;  and  in  the 
solemn  obligations  of  fidelity  to  the  constitution,  under  which  all 
legislative  functions  are  performed. 

With  these  general  views  of  constitutional  law,  we  proceed 
to  consider  the  questions  more  immediately  before  the  court.  On 
the  argument  of  the  cause,  the  courts  attention  was  directed  to 
act  of  Assembly  passed  in  1823,  entitled,  "An  act  for  the  re- 
lief of  Mary  Meginnis,"  which  the  appellee's  counsel  asserted 
to  be  in  violation,  in  some  of  its  provisions,  of  the  constitution  of 
the  State.  Should  it  be  found  to  be  so,  the  judgment  of  Kent 
County  Court  will  be  affirmed,  the  appeal  having  been  taken  in 
a  suit  founded  wholly  upon  this  act  of  Assembly.  Whether  the 
act  is  then  an  infringement  of  the  constitution,  is  the  main  ques- 
tion to  be  determined  by  this  court,  and  it  rests  upon  the  two 
following  points :  Is  the  enactment  of  the  third  section  of  the 
act  of  1823,  an  exercise  by  the  legislature  of  judicial  power  ? 
Is  the  exercise  by  the  legislature  of  judicial  power,  in  the  pas- 
sage of  a  law,  repugnant  to  the  constitution  ? 

The  act  of  1823  is  an  act  of  divorce,  separating  Mary  Me- 
ginnis from  the  bed  and  board  of  her  husband,  and  its  third  sec- 
tion is  clothed  in  this  language :  "And  be  it  enacted,  that  the 
said  Casparus  Meginnis  shall  annually  hereafter  pay  to  John 
Crane  of  Queen  Jinn's  County,  who  is  hereby  made  the  trustee 
in  that  behalf,  to  and  for  the  use  and  benefit  of  the  said  Mary 
Meginnis,  the  sum  of  three  hundred  dollars,  in  two  equal  instal- 
ments, the  first  on  the  first  day  of/March,  and  the  second  on  the 
first  day  of  September,  in  each  /and  every  year  during  the  joint 
lives  of  the  said  Casparus  Meginnis  and  Mary  Meginnis,  and 
the  said  trustee  shall  be  authorised  to  institute  suit  in  his  own 
name  for  any  instalment  which  shall  not  be  paid,  on  the  day  on 
which  the  same  is  hereby  declared  to  be  due,  and  it  shall  be 
the  duty  of  the  court  before  whom  the  suit  is  brought  to  try  the 
same  at  the  term  to  which  the  writ  is  made  returnable."  This 
grant  of  an  annuity,  is  called  a  grant  of  alimony,  and  it  is  con- 
tended, that  after  the  legislative  separation,  it  might  have  been 
recovered  by  the  wife  in  the  Court  of  Chancery,  pursuant  to 
VOL.  1.— 60. 


171          CASES  IN  THE  COURT  OF  APPEALS 

Crane  vs.  Meginnis. — 1829. 

the  laws  of  this  State,  if  her  case  merited  the  interference  of 
the  Chancellor,  and  the  circumstances  of  the  husband  justified 
the  allowance  of  such  a  sum. 

The  investigation  of  this  point  led  us  into  a  general  review 
of  the  British  law  of  divorce  and  alimony.  From  the  research 
it  has  appeared  to  us,  that  they  are  both  of  judicial  cognizance 
in  the  Ecclesiastical  Courts  of  that  country ;  that  the  divorce  a 
mensa  et  ihoro  separates  the  parties  for  unfitness  for  the  mar- 
riage state,  and  the  separation  is  the  remedy  administered  for 
the  injury  to  the  suffering  party;  that  alimony  is  the  maintenance 
afforded  to  the  separated  wife  for  the  injury  done  her  by  her 
husband,  in  neglecting  or  refusing  to  make  her  an  allowance 
suitable  to  their  station  in  life,  and  is  treated  as  a  consequence 
drawn  from  the  divorce  a  mensa  et  thoro;  and  that  each  of  those 
matrimonial  causes  is  dependent  on  different  facts,  and  is  re- 
dressed by  different  judgments,  although  both  are  within  the 
jurisdiction  of  the  same  tribunal.  In  this  State  the  act  of  di- 
vorcing man  and  wife  has  been  performed  by  the  legislature, 
for  the  want  perhaps  of  ecclesiastical  authority  to  effect  it,  or 
borrowing  perchance  the  power  from  the  parliament  of  Great 
Britain,  which  sometimes  granted  divorces  a  vinculo  nwtrimo- 
rm,  for  supervenient  causes,  arising  ex  post  facto,  a  thing  that 
the  spiritual  courts  could  not  do.  However  this  may  be,  divor- 
ces in  this  State  from  the  earliest  times  have  emanated  from  the 
General  Assembly,  and  can  now  be  viewed  in  no  other  light, 
than  as  regular  exertions  of  legislative  power.  The  private 
acts  passed  for  more  that  ten  years  back  we  have  adverted  to, 
and  almost  every  divorce  law  has  been  found  to  be  expressed 
in  terms  peculiar  to  itself.  In  some,  the  mere  separation  from 
bed  and  board  is  effected  in  the  plainest  and  shortest  way,  as 
in  the  case  of  Francis  B.  MitcMl  by  the  act  of  1822,  ch.  138, 
and  in  the  case  of  Sarah  Kerr  by  the  act  of  1824,  ch.  118;  and 
in  other  acts,  separating  the  married  parties,  particular  conse- 
quences of  a  continuing  coverture  are  sedulously  guarded 
against  In  none,  not  even  in  the  act  of  1818,  ch.  203,  referred 
to  by  counsel,  is  there  any  thing  like  a  provision  for  the  future 
maintenance  of  the  wife,  graduated  to  the  circumstances  of  the 


OF  MARYLAND.  475 


Crane  vs.  Mcginnis. — 1829. 


husband,  and  the  station  in  life  of  the  parties,  as  the  act  of  1823 
would  appear  to  be.  On  the  other  hand,  the  suit  for  alimony 
in  this  State,  as  in  Great  Britain,  is  a  distinct  remedy  from  the 
proceedings  to  obtain  a  divorce,  and  for  a  series  of  years  the 
wifes'  maintenance  has  been  recoverable  through  the  interven- 
tion of  our  judicial  tribunals.  So  early  as  the  year  1 689,  in 
the  case  of  Galnnth  vs.  Galwith,  4  Harr.  8f  MiHen.  477,  it  was 
asserted  in  the  Supreme  Court  of  the  Province,  that  alimony  is 
only  recoverable  in  Chancery,  or  the  Court  of  the  Ordinary; 
and  in  the  year  1777,  the  act  of  Assembly  was  passed,  which 
expressly  authorised  the  Chancellor  to  hear  and  determine  all 
causes  for  alimony,  in  as  full  and  ample  manner  as  such  causes 
could  be  heard  and  determined  by  the  laws  of  England  in  the 
Ecclesiastical  Courts  there.  Since  this  last  period,  such  caus- 
es have  been  continually  acted  upon  by  the  Chancellor,  and  in 
some  instances  appeals  have  been  taken  to  the  Appellate  Courts, 
and  decided  on  by  them.  And  we  cannot  permit  ourselves  for  a 
moment  to  doubt,  that  if  Mary  Meginnis,  like  Francis  B. 
Mitchell  and  Sarah  Kerr,  had  obtained  simply  an  act  of  divorce, 
she  might  have  recovered,  having  merits,  a  maintenance  suitable 
to  her  station  in  life,  and  to  quadrate  with  the  situation  of  her 
husband,  by  a  bill  in  Chancery,  or  an  application  to  the  equity 
side  of  Kent  County  Court.  If  she  could  have  been  thus  re- 
dressed by  an  exercise  of  judicial  authority,  we  would  ask,  is 
it  not  fair  to  conclude  that  the  redress  granted  to  her  by  the  le- 
gislature, is  an  exercise  of  judicial  authority  ?  The  nature  of 
the  power  employed  must  be  judged  of,  by  having  an  eye  to  the 
like  power  exercised  by  a  co-ordinate  department.  Should  the 
executive  try  and  sentence  a  felon  to  punishment,  the  judicial 
authority  exercised  could  not  be  mistaken:  and  should  the  judi- 
ciary undertake  to  enact  and  promulgate  a  law,  and  exact  obe- 
dience to  it,  the  act  would  doubtlessly  be  pronounced,  at  once, 
an  usurpation  upon  the  functions  of  the  legislature. 
£  The  enactment  of  the  third  section  of  the  act  of  1823,  being 
in  our  opinion  an  exercise  by  the  legislature  of  judicial  power, 
our  attention  will  now  be  engaged  for  a  short  time  with  the  en- 


470         CASES  IN  THE  COURT  OF  APPEALS 

Crano  t>s.  Mcginnis. — 1829. 

quiry,  whether  the  exercise  by  the  legislature  of  judicial  pow- 
er in  the  passage  of  a  law,  is  repugnant  to  the  constitution. 

The  decision  of  this  point  must  depend  upon  the  sound  con- 
struction of  the  sixth  section  of  the  bill  of  rights,  which  says, 
"that  the  legislative,  executive,  and  judicial  powers  of  govern- 
ment, ought  to  be  forever  separate  and  distinct  from  each  other."' 
This  political  maxim  made  its  appearance,  in  some  form,  in  all 
the  state  constitutions  formed  about  the  time  of  the  war  of  the 
revolution,  and  is  said  to  have  been  borrowed  by  them  of  the 
celebrated  Montesquieu's  Spirit  of  Laws,  vol.  I.  p.  181.  In  what- 
ever terms  they  have  adopted  it,  in  none  of  these  constitutions 
are  the  several  departments  kept  wholly  separate  and  unmixed. 
In  some  of  them,  as  in  the  constitution  of  this  State,  the  execu- 
tive is  appointed  by  the  legislature,  and  the  judiciary  by  the 
executive,  and  in  others,  the  powers  of  the  several  departments 
are  still  more  blended  and  mingled  together.  Upon  a  full  con- 
sideration of  each  of  them,  it  seems  to  us  to  have  been  the  in- 
tention to  ingraft  this  invaluable  maxim  of  political  science  on 
their  respective  systems,  only  as  far  as  comported  with  free  go- 
vernment, and  to  prohibit  the  exercise  by  one  department  of  the 
powers  of  another  department,  or  to  confine  each  department  to 
the  exclusive  exercise  of  its  own  powers.  This  last  is  admira- 
bly expressed  in  the  constitution  of  Massachusetts,  and  evinces 
a  perfect  acquaintance  of  its  framers  with  the  pages  and  doctrines 
of  Baron  Montesquieu.  It  is  worded  thus :  "That  the  legislative 
department  shall  never  exercise  the  executive  and  judicial  pow- 
ers, or  either  of  them :  the  executive  shall  never  exercise  the  le- 
gislative and  judicial  powers,  or  either  of  them:  the  judicial  shall 
never  exercise  the  legislative  and  executive  powers,  or  either  of 
them."  The  inhibition  goes  to  the  practical  exercise  of  powers 
conferred  by  the  constitution,  and  to  be  used  after  it  is  in  opera- 
tion, and  does  not  apply  singly  to  the  original  distribution  of  pow- 
ers among  the  departments  of  the  government.  In  the  same  sense: 
we  construe  the  sixth  article  of  our  bill  of  rights,  which  has  the 
same  objects  in  view  with  the  constitution  of  Massachusetts,  al- 
though somewhat  different  terms  are  employed  to  express  them. 
The  one  imitates  the  language,  and  the  other  dives  into  and  ex 


OF  MARYLAND.  477 


Chappellear's  Ex'rs.  vs.  Harrison — 1829. 


presses  the  meaning  of  the  venerated  author  from  which  they 
both  copied.  Their  common  purpose  is  to  confine  in'practice, 
the  action  of  each  department  to  its  own  appropriate  sphere,  by 
forbidding  to  it  the  use  of  powers  allotted  to  the  co-ordinate  de- 
partments. 

We  have  already  determined  the  first  point,  and  we  have 
now  to  add  our  perfect  conviction,  that  the  exercise  by  the  le- 
gislature of  judicial  power  in  the  passage  of  a  law,  is  repugnant 
to  the  constitution.  Our  conclusion  from  all  this  reasoning  is, 
that  the  third  section  of  the  act  of  1823  is  a  nullity,  and  was 
rightly  considered  unavailable  to  support  the  plaintiffs  action  in 
the  County  Court  where  the  suit  originated,  and  that  the  judg- 
ment therefore  ought  to  be  affirmed. 

In  acting  upon  this  case,  we  wish  to  be  understood  to  decide 
nothing  but  the  points  before  mentioned — only  to  adjudge  that 
the  exercise  by  the  legislature  of  judicial  power,  is  in  opposition 
to  the  constitution,  and  that  the  enactment  of  the  third  section  of 
the  act  of  1823,  was  an  exertion  of  judicial  power,  and  is  neces- 
sarily a  void  act. 

JUDGMENT  AFFIRMED. 


CHAPFELLEARS  Ex'rs  vs.  HARRISON. — December,  1829. 

In  replevin  the  defendants  avowed  for  rent  in  arrear  due  to  them  as  Execu- 
tors of  C,  from  the  plaintiff  as  tenarft  to  their  testator,  for  the  term  of  two 
years  ending  on  the  31st  December,  1820;  and  averred  that  the  plaintiff 
still  remained  in  possession  of  the  rented  premises.  The  plaintiff  pleaded 
1st,  that  he  did  not  possess  and  enjoy  the  premises  under  a  demise  from  C.  as 
his  tenant,  in  manner,  &c.  2d.  That  C  did  not  demise  the  premises  to  him 
in  manner,  &c.  3d.  No  rent  in  arrear.  Upon  these  pleas  issues  were  joined, 
and  on  their  trial  in  addition  to  proof  of  the  avowry,  it  appeared  that  C  died 
in  March,  1820 — that  on  the  1st  January,  1821,  the  avowants  rented  the 
same  premises  to  the  plaintiff  for  the  year  1821,  and  as  executors  of  C 
made  their  distress  for  the  rent  of  1819-20 — nineteen  months  after  the  ter- 
mination of  C's  lease,  and  while  the  plaintiff  was  in  possession  under  the 
demise  of  the  avowanta.  The  County  Court  instructed  the  jury,  that  the 
dfstress  not  having  been  made  within  six  months  next  after  ihe  tormina- 


CASES  IN  TIM;  COIIKT  OK  AIMM-.AI.S 

Chappolloar's  Ex'rs  rt.  HarrUon.—  182D. 

lion  of  iln  demise  by  C,  and  the  avowaiits  having  before  ihe  time  of  mak- 
ing their  distress,  made  a  new  lea-.e  to  Hie  olanilill',  tin  3  mu^t  liml  a  vcr- 
dirt  fi-r  him.  It  MM*  lirl,l  ii/mn  appeal,  lliat  no  question  as  to  the  right  'of 
the  nvowanN  a>  exeeutors  of  C,  to  make  a  distress  for  rent  fallin:'.  due 
under  a  drmi-e  l>>  him,  ritlier  heforo  or  after  his  death  a  HIM-.  unon  this 
record;  that  whether  the  distress  was  made  in  duo  time  or  not,  was  not  in 
issue  hy  the  pleadings,  and  that  the  instruction  of  the  County  Court  was 
erroneous. 

• 

APPEAL  from  Saint  Mary's  County  Court. 

This  was  an  action  of  replevin  brought  by  the  appellee  (the 
plumtilV  in  the  court  below)  against  the  appellants  (the  dd'c.nd- 
ants  in  that  court.) 

This  case  which  is  ftilly  stated  by  the  Judge  who  delivered 
the  opinion  of  the  court,  was  argued  before,  BUCHANAN,  Cli.  J. 
EARLE  and  DORSEY,  J.; 

Jl.  C.  Magnukr  and  Causin,  for  the  appellants  contended. 

1.  That  no  issue  in  the  cause  would  have  justified  the  court, 
in  giving  the  instruction  for  the  first  reason,  even  if  such  had 
been  the  law,  had  the  proper  plea  been  pleaded. 

2.  That  it  was  not  necessary  that  the  distress  should  have 
been  made  at  an  earlier  period. 

3.  That  the  reduction  of  the  rent,  the  following  year  could 
aiot  take  away  the  remedy  by  distress  for  the  rent  in  arrear. 

ited  Beavan  vs,  Ddatuty  fy  Lewis,  1  //.  Blk.  G,  Ib.  7,  (note) 


No  counsel  argued  for  the  appellee. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court. 

It  appears  from  the  pleadings  in  this  cause,  that  the  appellants 
avowed  for  five  hundred  dollars  rent  in  arrear,  due  and  owing 
to  them  as  executors  of  John  Chappcllcar,  by  the  appellee  as 
tenant  to  their  testator,  of  a  dwelling  house  which  he  held  and 
enjoyed  under  him,  for  the  term  of  two  years  ending  on  the 
thirty-first  of  December,  1820,  by  virtue  of  a  demise  at  the  year- 
ly rent  of  $250;  and  set  out  in  the  avowry  that  the  appellee  si  ill 
remained  in  possession  of  the  premises.  To  this  it  was  pleaded, 
1  st.  That  the  appellee  did  not  possess  and  enjoy  the  premises 


OF  MARYLAND.  479 


Chappellear's  Ex'rs  vs.  Harrison. — 1829. 


&c.  under  and  by  virtue  of  a  demise  from  John  Chappelkar  as 
his  tenant,  in  manner,  &c.  2d.  That  John  Chappelkar  did  not 
demise  the  premises,  &c.  to  the  appellee  in  manner,  &c.  and  3d, 
That  the  sum  of  five  hundred  dollars  was  not  in  arrear  and  un- 
paid to  John  Chappelkar,  nor  any  part  thereof  at  the  time  when, 
&c.  upon  which  issues  were  joined. 

A  witness  examined  on  the  pyjt  of  the  avowants,  who  are  the 
appellants  here,  proved  the  demise  set  forth  in  the  avowry,  by 
John  Chappelkar  their  testator,  to  the  appellee  at  the  yearly 
rent  of  $250 :  that  the  appellee  entered  upon  the  premises  so 
demised  as  tenant  to  John  Chappelkar,  and  occupied  and  enjoy- 
ed the  same,  for  and  during  the  years  181 9  and  1820,  atthe  stipu- 
lated annual  rent  of  $250,  and  that  the  appellee  continued  in  the 
occupation  thereof  until  the  first  of  January,  1 824.  If  the  testi- 
mony had  stopped  here,  we  should  probably  not  have  heard 
of  this  case.  But  the  same  witness  proceeded  1o  prove,  that 
John  Chappelkar  died  in  the  month  of  March,  1820,  that  the 
appellants  on  the  first  of  January,  1821,  rented  the  same  prem- 
ises to  the  appellee  for  the  year  1821  for  the  sum  of  $90,  and 
that  the  appellants  as  executors  of  John  Chappelkar,  made  their 
distress  for  the  rent  due  and  in  arrear  from  the  appellee  for  the 
years  1819  and  1820,  under  the  demise  by  John  Chappelkar, 
on  the  1st  of  August,  1822,  nineteen  months  after  the  termina- 
tion of  the  lease  by  Chappelkar  to  the  appellee,  and  when  the 
appellee  was  in  possession  of  the  premises  under  and  in  virtue 
of  a  letting  by  the  appellants.  Upon  this  evidence,  the  court 
before  which  the  cause  was  tried^  was  of  opinion  and  so  instruct- 
ed the  jury  (as  we  understand  the  opinion  and  instruction  set 
out  in  the  bill  of  exception)  that  the  distress  not  having  been 
made,  within  six  months  next  after  the  termination  of  the  de- 
mise by  John  Chappelkar,  and  the  appellants  having  before  the 
time  of  making  the  distress,  made  a  new  lease  of  the  premises 
to  the  appellee,  they  must  find  a  verdict  for  the  appellee,  in 
which  opinion  and  instruction  we  do  not  concur.  No  question 
as  to  the  right  of  the  appellants  as  executors  of  John  Clutppcl- 
kar  to  make  a  distress  for  rent  falling  due  under  a  demise  by  him, 
either  before  or  after  his  death,  arises  upon  this  record.  It  does 


480          CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  AdmV.  D.B.Jf. — 1823. 

not  appear  whether  Chappcllear  himself  had  more  than  a  term  in 
the  premises;  and  whether  the  distress  was  made  in  due  time  or 
not,  is  a  question  that  is  not  raised  by  the  pleadings  in  the  cause. 
If  the  appellee  was  desirous  of  making  that  question,  he  might, 
and  ought  to  have  raised  it,  by  putting  in  a  proper  plea  for  that 
purpose.  He  might  have  pleaded  that  the  distress  was  made 
after  the  expiration  of  six  months,  next  after  the  termination  of 
the  demise  by  Chappcllear,  and  thus  have  put  that  matter  in  is- 
sue. He  did  not  so  plead,  and  there  was  no  issue  joined,  to 
which  evidence  of  that  fact  was  applicable,  or  to  entitle  the  ap- 
pellee to  a  verdict  on  that  ground.  The  only  questions  present- 
ed to  the  jury  by  the  issues  appearing  in  the  record,  were  1st. 
Whether  the  appellee  did  possess  and  enjoy  the  premises  in 
which,  &c.  under  a  demise  from  John  Chappellear  as  his  tenant. 
2d.  Whether  John  Chappcllear  did  demise  the  premises,  &c.  to 
the  appellee.  And  3d.  Whether  the  sum  of  $500  or  any  part 
thereof  was  due  and  unpaid  as  rent  in  arrear  to  John  Cliappcl- 
lear — And  the  proof  as  stated  in  the  bill  of  exception,  appear- 
ing to  be  full  in  support  of  the  issue  joined  on  the  part  of  the 
appellants,  we  perceive  nothing  to  authorise  the  direction  given 
to  the  jury  to  find  a  verdict  for  the  appellee  upon  the  issues 
joined  in  the  cause,  and  which  alone  they  were  sworn  to  try. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


THE  MAYOR  &  CITY  COUNCIL  OF  BALTIMORE  vs.  HUGHES'S 
Adm'r  D.  B.  JY.— December,  1829. 

Under  the  2d.  sec.  of  the  act  of  1797,  ch.  54,  the  power  given  to  the  Mayor 
and  City  Council  of  Baltimore,  "to  tax  any  particular  part  or  district  of  the 
city,  for  paving  the  streets,  lanes  or  alleys  therein,  or  for  sinking  wells  or 
erecting  pumps,  which  may  appear  for  the  benefit  of  such  particular  part 
or  district,"  is  not  confined  to  any  particular  description  of  benefit — such  as 
the  ordinary  benefit  and  advantage  of  paved  streets.  The  preservation  of 
the  health  of  such  particular  part  of  the  city,  is  a  benefit  within  the  mean- 
ing and  scope  of  the  act. 


OF  MARYLAND.  481 


The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N.— 1829. 

The  legality  of  laying  such  tax,  does  not  depend  upon  whether  the  paving 
does,  or  does  not  in  fact,  benefit  the  particular  district  taxed,  but  upon  the 
object,  the  motive  of  the  corporation  in  causing  the  paving  to  be  done. 

IE.  an  ordinance  providing  for  such  paving,  and  the  imposition  of  such  a  spe- 
cial tax,  it  is  not  necessary  that  it  should  be  expressly  stated  to  be  for  the 
benefit  of  the  particular  district;  if  nothing  appears  to  the  contrary,  such 
an  exercise  of  the  special  taxing  power  will  be  taken  to  have  been  in  pur- 
suance of  the  authority  given  by  the  charter. 

But  where  an  ordinance  provides  for  the  paving  of  a  street,  &c.  in  a  particu- 
lar district,  and  the  imposition  of  a  special  tax  for  that  purpose  on  such 
district,  which  paving  appears  from  the  ordinance  to  be  for  the  general  bene- 
fit of  the  city,  and  not  for  the  benefit  of  the  particular  district,  it  is  not  in 
pursuance  of  the  authority  conferred  by  the  charter,  and  is  void. 

So  upon  the  construction  of  the  13th  sec.  of  the  ordinance  of  the  9th  March,  1807, 
which  declares  "that  if  the  Commissioners  of  Health  shall,  at  any  time  re- 
port in  writing  to  the  City  Commissioners,  that  a  nuisance  exists  in  any  street, 
lane,  or  alley  in  the  city  of  Baltimore,  which  will  endanger  the  health  thejre- 
of,"  &c.  it  was  held  that  the  word  thereof  does  not  relate  to  the  city  of  Bal- 
timore, so  as  to  make  it  mean  a  nuisance  which  will  endanger  the  city,  but 
that  it  relates  to  any  street,  lane  or  alley,  &c.  and  means  a  nuisance  that 
will  endanger  the  health  of  such  street,  &c.  and  the  ordinance  is  clearly 
within  the  power  conferred  by  the  charter. 

A  corporation  must  act  within  the  limits  of  its  delegated  authority,  and  can- 
not go  beyond  it,  yet  it  ought  not  by  construction  to  be  made  to  mean  what 
is  not  clearly  expressed,  but  when  its  ordinances  will  admit  of  two  construc- 
tions, they  should  receive  that  which  is  consistent  with  the  power  given,  and 
not  that  which  is  in  violation  of  it. 

Where  one  board  of  commissioners,  in  the  execution  of  their  duties,  were 
required  to  report  in  writing  to  another  board  of  commissioners,  who 
thereupon  were  to  do  certain  acts;  and  these  boards  were  subsequently 
united  without  any  change  being  prescribed  as  to  the  mode  of  discharg- 
ing the  trusts  formerly  confided  to  each  of  them,  the  formality  of  a  written 
report  as  above  directed,  was  necessarily  dispensed  with. 

Under  the  13th  section  of  the  ordinance  of  the  9th  March,  1807,  the  City 
Commissioners  and  Commissioners  of 'Health,  were  required  to  form  a  posi- 
tive and  decided  opinion  that  "a  nuisance  exists"  in  some  "street,  lane,  or 
alley  in  the  city  of  Baltimore,  which  will  endanger  the  health  thereof" — An 
entry  in  their  books  of  their  decision  is  not  required.  Certificates  in  their 
warrants,  which  they  are  directed  to  issue  for  the  collection  of  the  tax  im- 
posed to  remove  the  nuisance,  of  the  existence  of  the  nuisances  and  of  their 
characters  would  be  sufficient;  but  where  they  say  in  each  warrant  that 
they  conceive  the  street  mentioned,  to  be  in  a  state  of  nuisance,  which 
might  endanger  the  health  of  the  city,  thus  referring  to  the  health  of  the 
city  generally,  not  to  that  of  a  particular  part,  it  is  not  such  an  opinion 

VOL.  L— 61. 


CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'rD.  B.  N — 1829. 

as  the  ordinance  requires,  and  the  tax  imposed  under  it  cannot  be  enfor- 
ced. 

It  is  not  competent  to  prove  by  oral  testimony,  the  existence  of  facts  to  be 
ascertained  by  public  commissioners,  preparatory  to  laying  a  tax,  which 
such  commissioners  are  required  to  certify  in  writing. 

The  action  for  money  paid,  laid  out,  and  expended,  must  be  founded  upon 
a  contract,  express  or  implied. 

No  person  can  by  a  voluntary  payment  of  the  debt  of  another,  without  his 
authority,  make  himself  a  creditor  of  the  person  whose  debt  is  thus 
paid. 

If  one  is  compelled,  or  is  in  a  situation  to  be  compelled  to  pay  the  debt  of  ano- 
ther, as  in  the  case  of  a  surety  and  does  pay  it,  the  law  implies  a  promise  on 
the  part  of  him  for  whom  the  money  is  paid,  on  which  an  action  may  be 
sustained,  for  in  such  case  it  is  not  a  voluntary,  but  a  compulsory  payment. 

A  tax  imposed  by  a  municipal  corporation  cannot  be  recovered  on  a  count 
for  money  paid,  laid  out,  and  expended,  although  such  corporation  has 
paid  the  cost  of  the  improvement  for  which  the  tax  was  created. 

Nor  can  the  cost  of  such  improvement,  or  any  part  thereof,  be  recovered 
from  a  defendant,  liable  to  pay  tax  therefor  on  a  count  for  work  and 
labor,  where  the  ordinance  under  which  the  work  was  done,  has  not  been 
properly  pursued,  so  as  to  create  a  legal  liability  in  the  defendant. 

APPEAL  from  Harford  County  Court.  This  was  an  action  of 
Assumpsit,  originally  brought  in  Baltimore  County  Court,  but  on 
suggestion,  &c.  of  the  defendant  (the  intestate  of  the  appellee) 
was  removed  to  Harford  County  Court.  After  the  cause  was 
so  removed,  the  death  of  the  original  defendant  was  suggested, 
and  the  present  appellee  was  made  defendant,  as  his  adminis- 
trator de  bonis  now.  The  action  was  brought  to  recover  the 
sum  of  $1880  35,  alleged  to  be  due  to  the  plaintiffs  (the  appel- 
lants) for  certain  paving  taxes  assessed  upon  the  property  of 
the  intestate,  by  virtue  of  the  corporate  powers  vested  in  the 
plaintiffs  by  certain  acts  of  Assembly.  The  declaration  con- 
tained six  counts — four  special  counts,  and  two  general  counts. 
The  first  count  was  for  a  paving  tax,  on  application,  &c.  impos- 
ed the  24th  of  April,  1809,  on  Forrest  street,  &c.  amounting  to 
$656.  The  second  count  was  for  a  paving  tax  to  remove  a  nui- 
sance, imposed  the  20th  of  July,  1812,  on  Barre  street,  between 
Light  and  diaries  streets,  amounting  to  $728.28.  The  third  count 
was  for  a  similar  tax,  imposed  the  29th  of  July,  1812,  on  For- 
rest street,  between  Lee  and  York  streets,  amounting  to  $496  07. 


OF  MARYLAND.  483 


The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N 1829. 

The  fourth  count  was  for  paving  taxes  generally,  amount- 
ing to  $1880  35,  being  the  aggregate  of  the  sums  mentioned  in 
the  three  first  counts  of  the  declaration.  The  fifth  count  was  ' 
for  money  paid,  laid  out  and  expended;  and  the  sixth  count  was 
for  work  and  labor.  The  defendant  pleaded  non  assumpsit, 
and  issue  was  joined. 

1.  At  the  trial  the  plaintiffs' gave  in  evidence  an  act  of  the 
General  Assembly  of  this  State,  passed  at  November  session, 
1796,  entitled,  "an  act  to  erect  Baltimore  town,  in  Baltimore 
County,  into  a  city,  and  to  incorporate  the  inhabitants  thereof." 
(1796,  ch.  &8.)  And  also  another  act  of  the  said  General  Assem- 
bly, passed  at  November  session,  1797,  entitled,  "A  supplement 
to  the  act,  entitled,.  An  act  to  erect  Baltimore  town,  in  Baltimore 
county,  into  a  city,  and  to  incorporate  the  inhabitants  thereof." 
(1797,  cfo.54.)  They  further  gave  in  evidence  an  ordinance  of  the 
Mayor  and  City  Council  of  Baltimore,  entitled,  "An  ordinance 
to  appoint  city  commissioners,  and  prescribing  their  duties," 
approved  March  the  9th,  1807.  And  also  gave  in  evidence  ano- 
ther ordinance,  entitled,  "An  ordinance  to  unite  the  powers  and 
duties  of  the  city  commissioners  and  commissioners  of  health," 
approved  22d  day  of  March,  1 807.  They  also  gave  in  evidence, 
that  during  the  year  1809,  Henry  Stouffer,  John  Bankson, 
William  C.  Gouldsmith,  and  Samuel  A.  Gatchell,  were  city 
commissioners,  duly  appointed  and  qualified,  and  that  the  said 
John  Bankson,  William  C.  Gouldsmith,  and  Samuel  H.  Gatch- 
ell, have  been  dead  several  years;  and  also  gave  in  evidence, 
that  Edward  Johnson  was  in  saidjear,  the  Mayor  of  the  city  of 
Baltimore,  duly  elected  and  qualified.  That  on  the  13th  of 
June,  1808,  the  following  petition  was  presented  to,  and  receiv- 
ed by  the  said  Henry  Stouffer,  &fc.  commissioners  as  aforesaid. 

"The  City  Commissioners,  Gentlemen — The  subscribers, 
owners  and  occupiers  of  houses  and  lots  situate  on  Forrest  street, 
between  the  southernmost  boundary  line  of  the  city  and  York 
ftreet,  are  desirous  to  have  the  same  paved  as  soon  as  possible." 
Signed  by  a  number  of  petitioners,  and  among  others  the  origin- 
al defendant  Hughes. 


484          CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Conncil  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N — 1829. 

On  the  back  of  which  said  petition  was  thus  endorsed:  "No  1. 
Petition  for  paving  Forrest  street.  Rec'd.  13th  June,  1808. 
Ordered  to  he  surveyed."  They  further  gave  in  evidence  the 
following  entries  made  in  the  book  containing  the  proceedings 
of  the  said  commissioners,  viz.  Baltimore,  8  May,  1809.  Com- 
missioners met.  Present,  full  board.  Issued  warrant  for  the 
paving  of  Forrest  street,  $1584  87,  $1503  57,  $3088  44."  They 
further  gave  parol  evidence,  that  upon  said  application  the  said 
commissioners  decided  to  pave  said  street,  and  obtained  the  ver- 
bal assent  of  the  mayor  of  said 'city  to  such  pavement;  they  also 
5flered  parol  evidence,  that  the  signers  of  said  application  or 
petition,  constituted  a  majority  of  the  proprietors  and  tenants 
inhabiting  on  said  street,  between  the  limits  so  required  to  be 
paved;  and  that  Christopher  Hughes,  one  of  the  proprietors, 
was  the  same  Christopher  Hughes  who  signed  said  application 
or  petition;  and  also  gave  in  evidence  the  following  warrants : 
"City  of  Baltimore,  set.  The  city  commissioners  having  been 
requested  by  a  majority  of  the  proprietors  of  lots  bounding  on 
Forrest,  between  York  street  and  the  outlines  of  the  city,  and 
tenants  inhabiting  thereon,  by  their  written  application  of  the 
fifteenth  day  of  June  last,  and  having  determined  on  the  pro- 
priety of  paving  said  street  front  of  said  lots,  agreeably  to  their 
request,  did  cause  to  be  made  the  following  list  of  the  names  of 
the  persons  who  are  liable  to  pay  the  tax  by  law  directed  to  be 
levied  for  paving  the  said  street,  it  being  the  width  of  eighty 
two  feet  six  inches."  Here  follows  the  names  of  sundry  per- 
sons, and  amongst  others,  ChnstopJier  Hughes,  $656. 

"City  of  Baltimore,  to  wit :  By  virtue  of  an  ordinance,  enti- 
tled, An  ordinance  directing  the  manner  of  collecting  and  ap- 
propriating the  money  levied  for  paving  the  streets,  lanes  and 
alleys,  in  the  city  of  Baltimore,  and  also  an  ordinance,  entitled, 
An  ordinance  for  more  equal  assessing  and  levying  the  paving 
tax  on  the  streets,  lanes  and  alleys,  in  the  city  of  Baltimore,  we 
the  subscribers,  city  commissioners,  do  hereby  authorise  and  di- 
rect you  to  collect  from  the  several  persons  whose  names  are 
hereto  above  annexed,  the  several  sums  of  money  opposite  their 
respective  names,  being  the  street  tax  on  Forrest  street,  between 


OF  MARYLAND.  485 


The  Mayor  and  City  Coancil  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N.— 1829. 

York  street  and  the  outlines  of  the  city.  That  you  will  make  col- 
lection aforesaid,  and  pay  the  same  to  the  register  of  the  city, 
agreeably  to  the  directions  of  the  ordinance  aforesaid,  and  this 
shall  be  your  sufficient  warrant  therefor.  Given  under  our  hands 
and  seals  this  24th  day  of  April  one  thousand  eight  hundred  and 
nine."  Signed  and  sealed  by  Henry  Stouffer,  SfC.  the  city  com- 
missioners. "8th  May,  1809.  Approved  Edward  Johnson.  To 
the  Collector  of  the  City  of  Baltimore,  Benjn.  Fowkr,  Esquire." 
On  the  back  of  which  said  warrant  was  thus  endorsed :  "War- 
rant for  paving  Forrest  street,  dated  8th  May,  1809.  Entered." 
They  also  gave  in  evidence  that  the  said  street  then  was,  and 
still  is,  a  public  street  in  said  city,  and  that  the  city  commission- 
ers caused  that  part  of  the  said  street  called  Forrest  street,  be- 
tween York  street,  and  the  outlines  of  the  city,  to  be  paved,  and 
that  the  proportion  of  the  paving  tax  of  the  said  Christopher 
Hughes  for  paving  said  part,  amounted  to  $656,  and  that  he  paid 
on  account  thereof,  when  the  paving  was  done,  the  sum  of  $500. 
They  then  offered  in  evidence  that  Henry  Stouffer,  $-c.  were 
city  commissioners,  and  commissioners  of  health,  in  the  city 
aforesaid,  in  the  year  1812,  duly  appointed  and  qualified  as 
such;  that  Edward  Johnson  was  then  and  during  the  said  year, 
the  mayor  of  said  city,  duly  elected  and  qualified  as  such.  The 
plaintiffs  then  gave  in  evidence  the  following  entries  made  up- 
on the  books  of  the  commissioners  aforesaid,  viz.  ''Baltimore, 
29th  June,  1812.  Commissioners  met.  Present,  full  board. 
Barre,  between  Light  and  Charles  streets,  and  Forrest,  between 
Lee  and  York  streets,  declared  by  the  board  of  health  to  be  in  a 
state  of  nuisance,  which  cannot  ^>e  removed  without  paving  the 
same.  Resolved,  that  the  same  be  forthwith  paved."  And  that 
the  books  in  which  said  entries  are  found  and  taken  from,  are 
the  books,  and  only  books,  of  the  commissioners  of  health  and 
city  commissioners,  in  which  all  their  proceedings  are  entered. 
The  plaintiffs  further  gave  in  evidence  the  following  warrants  : 
"City  of  Baltimore,  set.  We  the  city  commissioners,  as  also 
commissioners  of  health,  conceiving  Barre  street,  between 
Clutrles  and  Liglit  streets,  to  be  in  a  state  of  nuisance,  which 
might  endanger  the  health  of  the  city,  and  which  nuisance  in 


CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N — 1829. 

our  opinion  cannot  be  removed  but  by  paving,  do  adjudge  and 
determine  that  the  same  be  paved  front  of  the  lots  bounding 
thereon,  have  caused  to  be  made  the  following  list  of  the  names 
of  the  persons  who  are  liable  to  pay  the  tax  by  law  directed  to 
be  levied  for  paving  said  street  front  of  said  lots."  In  that  list 
is  the  name  of  Christopher  Hughes,  $728. 28. 

"City  of  Baltimore,  set.  By  virtue  of  an  ordinance,  entitled, 
An  ordinance  directing  the  manner  of  collecting  and  ^appropri- 
ating the  money  levied  for  paving  the  streets,  lanes  and  alleys,  in 
the  city  of  Baltimore,  as  also  an  ordinance,  entitled,  An  ordi- 
nance for  the  more  equal  assessing  and  levying  the  paving  tax  on 
the  streets,  lanes  and  alleys,  in  the  city  of  Baltimore,  and  agree- 
ably to  an  ordinance  respecting  nuisances,  we,  the  city  commis- 
sioners, do  hereby  authorise  and  direct  you  to  collect  from  the 
several  persons  whose  names  are  hereto  above  annexed,  the  se- 
veral sums  of  money  opposite  their  respective  names,  being  the 
paving  tax  on  Barre  street,  between  Charles  and  Light  streets. 
That  you  will  make  the  collection  aforesaid,  and  pay  the  same 
to  the  register  of  the  city,  agreeably  to  the  ordinances  aforesaid, 
and  this  shall  be  your  sufficient  warrant  therefor.  Given  under 
our  hands  and  seals  this  twentieth  day  of  July,  1812."  Signed 
and  sealed  by  Henry  Stouffer,  &c.  the  city  commissioners,  "23d 
July,  1812.  Approved  Edward  Johnson,  Mayor."  To  the  col- 
lector City  of  Baltimore.  On  the  back  of  which  said  warrant 
was  thus  endorsed — "Warrant  for  paving  Barre  street  between 
Charles  and  Light  streets.  Dated  23d  July,  1812.  Ent." 

"City  of  Baltimore,  set.  We  the  city  commissioners,  as  also 
commissioners  of  health,  conceiving  Forrest  street,  between  Lee 
and  York  streets,  to  be  in  a  state  of  nuisance,  which  might  en- 
danger the  health  of  the  city,  and  which  nuisance,  in  our  opinion, 
cannot  be  removed  but  by  paving,  do  adjudge  and  determine, 
that  the  same  be  paved  front  of  the  lots  bounding  thereon,  and 
have  caused  to  be  made  the  following  list  of  the  names  of  the 
persons  who  are  liable  to  pay  the  tax  by  law  directed  to  be  le- 
vied for  paving  said  street."  In  that  list  Christopher  Hughes1  tax 
was  $496  07.  A  similar  warrant  to  that  last  mentioned  was  is- 
sued on  the  29th  of  July,  1812,  by  the  commissioners  for  collect- 


OF  MARYLAND.  487 


The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N. — 1829. 

ing  the  tax,  and  which  was  approved  by  the  mayor  on  the  same 
day.  On  the  back  of  which  said  warrant  was  thus  endorsed — 
"Warrant  for  paving  Forrest  street,  between  Lee  and  York  streets. 
Dated  29th  July,  1812.  Ent'd."  The  plaintiffs  also  gave  in  evi- 
dence, that  Barre  street,  between  Charles  and  Light  streets,  and 
Forrest  street  between  Lee  and  York  streets,  then  were,  and  still 
are,  public  streets  in  the  said  city  of  Baltimore,  and  that  said 
Christopher  Hughes  was  in  possession,  and  claimed  title  to  the  pro- 
perty on  Barre  and  Forrest  streets,  for  about  thirty  years,  at  the 
time  the  said  streets  were  paved,  and  that  the  city  commission- 
ers aforesaid,  caused  that  part  of  Barre  street,  between  Charles 
and  Light  streets,  to  be  paved,  and  that  the  said  proportion  of 
the  said  paving  tax  therefor  of  the  said  Christopher  Hughes, 
amounted  to  $728  28,  as  assessed  to  him  by  the  city  commission- 
ers; and  that  the  said  commissioners  caused  that  part  of  Forrest 
street,  between  Lee  and  York  streets,  to  be  paved,  and  that  the 
proportion  of  the  said  paving  tax,  as  charged  by  the  city  com- 
missioners to  the  said  Christopher  Hughes,  amounted  to  $496  07. 
The  plaintiffs  further  offered  in  evidence,  by  Elisha  T.  Bai- 
ley, that  he  contracted  with  the  said  commissioners  to  pave 
the  said  parts  of  the  said  two  streets  last  mentioned;  that  he  did 
pave  the  same,  and  received  payment  therefor  from  the  plain- 
tiffs, and  that  the  said  Christopher  Hughes  was  frequently  pre- 
sent on  the  said  parts  of  streets,  when  the  witness  was  so  pav- 
ing the  same,  and  requested  a  part  thereof  to  be  done  in  a  par- 
ticular manner,  by  objecting  to  certain  stones  used  as  improper, 
and  requesting  him  to  put  in  othe/s,  which  the  witness  accord- 
ingly did :  that  the  first  part  of  ,6aid  work  was  commenced  in 
July,  1812,  and  finished  either  the  last  of  July  or  first  of  Au- 
gust. Whereupon  he  immediately  commenced  the  paving  the 
other  street,  and  finished  the  same  in  the  fall  of  the  year ;  that 
the  said  Christopher  Hughes,  when  the  said  paving  was  finished, 
offered  to  pay  the  said  Baiky  for  paving  on  said  streets,  so  per- 
formed by  him,  provided  he  would  take  unimproved  lots  in 
payment  therefor,  which  the  said  Bailey  refused  to  do.  The 
plaintiffs  further  gave  in  evidence  that  the  said  Henry  Stouffer, 
&c.  mentioned  as  the  city  commissioners,  are  the  same  persons 


•1.-5S          CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  us.  Hughes'  Adm'r  D.  B.  N.— 1829. 

who  composed  the  board  of  health  of  the  said  city,,  and  were 
commissioners  of  health  at  the  periods  and  in  the  year  before 
mentioned;  and  they  further  gave  evidence,  that  the  several 
warrants  herein  before  mentioned,  were  duly  approved  by  the 
mayor  of  the  city  of  Baltimore,  before  the  same  were  issued 
and  delivered  to  the  collector  of  said  city. 

The  defendant  then,  prayed  the  court  to  instruct  the  jury 
that  the  plaintiffs  were  not  entitled  to  recover  for  the  pav- 
ing of  Barre  street,  between  Light  and  Charles  streets,  and  For- 
rest  between  Lee  and  York  streets — 1st.  Because  there  is  no  evi- 
dence that  the  commissioners  of  health,  or  board  of  health,  did 
at  any  time  ascertain  that  a  nuisance  existed  in  the  said  streets, 
which  would  endanger  the  health  of  the  city  of  Baltimore;  and 
also  because  there  is  no  evidence  that  the  said  commissioners  of 
health,  or  board  of  health,  did  at  any  time  report  in  writing  to 
the  city  commissioners,  that  a  nuisance  existed  in  the  said  streets, 
which  will  or  would  endanger  the  health  of  the  city  of  Balti- 
more. 2d.  And  because  the  plaintiffs,  by  virtue  of  the  thir- 
teenth section  of  their  ordinance  of  the  9th  of  March,  1807,  en- 
titled, "An  ordinance  to  appoint  city  commissioners,  and  pre- 
scribing their  duties,"  could  not  confer  a  power  on  the  said  ci- 
ty commissioners  to  assess  or  levy  a  tax  on  any  particular  part 
or  district  of  the  city  of  Baltimore,  or  the  proprietors  or  owners 
of  such  part  or  district,  for  the  purpose  of  preventing  or  remov- 
ing a  nuisance,  which  will  endanger  the  health  of  the  city  of 
Baltimore.  3d.  Because  it  is  in  evidence,  and  uncontradicted, 
by  the  books  and  proceedings  of  the  commissioners  of  health,  or 
board  of  health,  and  of  the  city  commissioners,  that  Barre  street 
between  Light  and  Charles  streets,  and  Forrest  street  between 
Lee  and  York  streets,  were  declared  by  the  board  of  health  to 
be  in  a  state  of  nuisance,  and  that  the  commissioners  of  health 
had  not  declared  the  said  streets  to  be  in  a  state  of  nuisance, 
which  will  or  would  endanger  the  health  of  the  city.  Which 
instruction  the  court  [Archer,  Ch.  J.]  gave  to  the  Jury.  The 
plaintiffs  excepted. 

2.  The  plaintiffs,  in  addition  to  the  evidence  set  forth  in  the 
preceding  bill  of  exceptions,  offered  in  evidence  by  Henry 


OF  MARYLAND.  489 


The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N — 1829. 

Stouffer,  a  witness  sworn  on  the  trial  on  the  part  of  the  plain- 
tiffs, that  he  was  the  only  survivor  of  the  board  of  city  commis- 
sioners, and  commissioners  of  health,  for  the  year  1812 ;  and  the 
plaintiffs  further  offered  in  evidence,  by  the  said  witness,  that  i# 
the  month  of  July,  1812,  Barre  street  between  Light  and  Charles 
streets,  and  Forrest  street,  between  Lee  and  York  streets,  were  en- 
tirely on  made  ground,  and  that  a  nuisance  existed  in  the  said  part 
of  the  said  streets,  which  endangered  the  health  of  the  city  of 
Baltimore,  and  that  the  same  could  not  be  effectually  removed 
without  paving  the  same.  To  the  admissibility  of  which  evi- 
dence, the  defendant  objected  ;  and  the  court  were  of  opinion, 
that  the  said  testimony  was  inadmissible,  and  refused  to  let  the 
same  go  to  the  jury.  The  plaintiffs  excepted. 

3.  The  plaintiffs  further  prayed  the  court  to  instruct  the  ju- 
ry, that  upon  the  evidence  contained  in  the  preceding  bills  of 
exceptions,  the  plaintiffs  are  entitled  to  recover  in  this  action 
the  proportion  of  the  paving  taxes  chargeable  to  the  said  Chris- 
topher Hughes  in  his  life-time,  for  the  paving  of  Barre  street, 
between  Light  and  Charles  streets,  to  wit,  the  sum  of  $728  28, 
and  for  the  paving  of  Forrest  street,  between  Lee  and  York  streets, 
to  wit,  the  sum  of  $496  07,  under  \hefifth  and  sixth  counts,  in 
their  declaration  for  money  paid,  laid  out  and  expended,  and 
for  work  and  labor  done,  and  materials  found  and  provided; 
which  instructions  the  court  refused  to  give.  The  plaintiffs  ex- 
cepted; and  the  verdict  for  the  plaintiffs  being  only  for  the  sum 
of  $318,  and  judgment  thereon  rendered,  they  appealed  to  this 
court. 


The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN  and  STEPHEN,  J. 

Taney  (Attorney  General)  and  J.  Scott  for  the  appellants,  con- 
tended that  the  court  below  erred  in  giving  the  instructions  pray- 
ed for  by  the  defendant,  as  set  forth  in  the  first  bill  of  excep- 
tions— 1.  Because  the  nature  and  character  of  the  nuisances  al- 
leged to  exist  in  Barre,  street,  between  Light  and  Charles  streets, 
and  in  Forrest  street,  between  Lee  and  York  streets,  were  suffi- 
ciently ascertained  by  the  proceedings  of  the  board  of  health 
VOL.  1.— 62. 


490          CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N.— 1829. 

and  city  commissioners,  according  to  the  ordinance  of  the  9th 
of  March,  1807,  ( Foung's  Ed.  60,  sec.  1 3.)— the  board  of  health 
and  city  commissioners  being  composed  of  the  same  persons. 
76.  165. 

2.  Because  the  powers  and  duties  of  the  board  of  health 
and  city  commissioners,  being  united  by  the  ordinance  (Ib.  165,) 
that  part  of  the  13th  section,  which  requires  a  report  in  writing 
from  the  board  of  health  to  the  city  commissioners,  of  the  ex- 
istence and  nature  of  the  alleged  nuisance  must  be  considered 
as  repealed — such  a  report  being  absurd  and  unnecessary. 

3.  Because  the  existence  and  character  of  the  nuisance,  be- 
ing ascertained  by  the  tribunal  competent  to  decide  the  question, 
and  the  plaintiffs  having  the  power  to  tax  as  well  as  pave,  by 
the  act  of  1797,  c/i.  54,  in  the  absence  of  proof  to  the  contrary, 
it  must  be  understood  to  be  a  lawful  exercise  of  those  powers. 

4.  Because  the  nature  of  the  nuisance  shows  that  it  was  for 
the  benefit  of  those  districts  that  it  should  be  removed ;  and 
the  competent  authorities  had  decided,  that  it  could  only  be 
done  by  paving. 

5.  Because  the  powers  to  prevent  and  remove  nuisances,  to 
pave,  and  to  tax  for  the  said  paving,  have  been  properly  exer- 
cised by  the  plaintiffs  by  their  officers  and  servants. 

6.  Because  the  nature  and  character  of  the  alleged  nuisances 
are  sufficiently  ascertained  by  the  commissioners  of  health  and 
city  commissioners,  in  the  warrants  issued  by  them,  and  no 
other  ascertainment  thereof  was  necessary. 

7.  The  appellants  also  contended,  that  the  court  below  er- 
red in  refusing  to  grant  the  prayer  of  the  plaintiffs,  contained  in 
the  third  bill  of  exceptions;  because  they  offered  evidence, 
proper  to  go  to  the  jury  under  the  fifth  and  sixth  counts  in  the 
declaration,  to  show  the  assent  of  the  defendants'  intestate  to 
the  paring  of  Barre  street,  between  Charles  and  Light  streets, 
and  of  Forrest  street,  between  Lee  and  York  streets,  and  the  pay- 
ment for  the  same  by  the  plaintiffs ;  and  that  upon  such  assent 
the  plaintiffs  were  entitled  to  recover  from  the  defendant  for 
such  paving,  and  for  the  money  so  paid,  laid  out  and  expended. 

They  referred  to  the  acts  of  Assembly  and  ordinances  stated  in 


OF  MARYLAND.  491 


The  Major  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N. — 1829. 

the  bills  of  exceptions.  Also  to  The  Mayor  fyc.  vs.  Moore  Sf 
Johnson,  6  Harr.  Sf  Johns.  380,  and  the  Mayor  fyc.  vs.  Howard, 
76.91. 

R.  Johnson  for  the  appellee.  1 .  The  character  of  the  nui- 
sance was  not  sufficient  to  justify  the  paving,  under  the  ordin- 
ance of  the  9th  of  March,  1807,  sec.  13. — 2.  The  paving  was  not 
such  as  authorised  the  imposition  of  the  tax  laid  under  the  act 
of  1797,  ch.  54.  3.  The  plaintiffs  were  not  entitled  to  recov- 
er under  the  general  counts  in  the  declaration,  for  work  and  la- 
bor done,  &c. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  court. 

A  recovery  by  the  plaintiffs  of  the  taxes  imposed  under  the 
13th  section  of  the  ordinance  of  the  9J/i  of  March,  ^1807 ,  is  re- 
sisted by  the  defendant  on  two  grounds. 

1st.  That  the  power  given  by  the  ordinance  has  not  been 
well  executed. 

2d.  That  the  ordinance  itself  is  not  authorised  by  the  char- 
ter. 

The  second  ground  relied  upon  involves  the  construction  both 
of  the  charter  and  the  ordinance,  and  will  be  first  examined. 

The  second  section  of  the  act  of  1797,  ch.  54,  a  supplement  to 
the  act  incorporating  the  city  of  Baltimore,  gives  to  the  corpo- 
ration power  to  pass  all  ordinances,  necessary  for  paving  and 
keeping  the  streets,  &c.  in  repair,  "and  to  tax  any  particular  part 
or  district  of  the  city  for  paving  the  streets,  lanes  or  alleys  there- 
in, or  for  sinking  wells,  or  erecting  pumps,  which  may  appear 
for  the  benefit  of  such  particular  part  or  district."  In  the 
case  of  The  Mayor  and  City  Council  of  Baltimore,  vs.  Moore 
and  Johnson,  6  Harr.  Sf  Johns.  380,  it  was  decided  by  this 
court,  that  the  word  which  in  that  provision  of  the  act,  rela- 
ted as  well  to  the  paving  the  streets,  lanes  and  alleys,  as  to  the 
sinking  of  wells  and  erecting  pumps,  and  that  the  corporation 
had  authority  to  tax  any  particular  part  or  district  of  the  city, 
for  paving  the  streets,  lanes  or  alleys  therein,  which  might  ap- 
pear for  the  benefit  of  such  particular  part  or  district.  The  rea- 
soning by  which  that  conclusion  was  arrived  at,  need  not  be  re- 


1!>J         CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adtn'r  D.  B.  N.— 1829. 

peated  in  this  place.  A  different  construction  however  would 
certainly  be  at  war  with  the  intention  of  the  legislature,  as  it 
never  could  have  been  contemplated,  to  give  to  the  corporation 
the  power  to  tax  any  particular  part  or  district  of  the  city,  for 
any  paving  which  was  for  the  general  benefit,  and  not  for  the 
benefit  of  the  immediate  part  or  district  taxed;  which  under  a 
different  construction,  would  be  the  effect  of  the  second  section 
of  the  act  of  1797,  taken  altogether.  Under  this  restricted 
construction,  limiting  the  power  of  the  corporation  to  tax  any 
particular  part  or  district  of  the  city,  for  paving  the  streets, 
lanes  and  alleys  therein,  to  a  paving  which  shall  be,  or  ap- 
pear to  be  for  the  benefit  of  such  particular  district,  and  not 
for  the  general  benefit  of  the  city,  which  ought  to  be  paid 
for  out  of  the  general  fund,  and  not  by  the  imposition  of  a 
special  tax  upon  any  particular  part  of  the  city,  we  think 
the  corporation  is  not  confined  to  any  particular  description  of 
benefit,  such  as  the  ordinary  benefit  and  advantage  of  paved 
streets;  and  that  the  preservation  of  the  health  of  such  particu- 
lar part  of  the  city,  is  a  benefit  within  the  meaning  and  scope  of 
the  act. 

The  legality  of  levying  the  tax,  does  not  depend  upon  wheth- 
er the  paving  does  or  does  not  in  fact  benefit  the  particular  dis- 
trict that  is  taxed,  but  upon  the  object,  the  motive  of  the  corpo- 
ration in  causing  the  paving  to  be  done.  And  in  an  ordinance 
providing  for  such  paving,  and  the  imposition  of  such  a  special 
tax,  it  is  not  necessary  that  it  should  be  expressly  stated  to  be 
for  the  benefit  of  the  particular  district:  but  if  nothing  appears 
to  the  contrary,  such  an  exercise  of  the  special  taxing  power, 
will  be  taken  to  have  been  in  pursuance  of  the  authority  given 
by  the  charter.  It  will  be  presumed  that  the  corporation  did 
not  exceed  its  powers,  but  imposed  the  tax  for  the  purpose  on- 
ly, for  which  the  charter  authorises  it  to  be  imposed,  and  that 
the  paving  appeared  to  the  city  council,  to  be  for  the  benefit  of 
the  particular  district. 

But  where  an  ordinance  provides  for  the  paving  a  street,  &c. 
in  a  particular  district,  and  the  imposition  of  a  special  tax  for 
that  purpose  on  such  district,  which  paving  appears  by  the  or- 


OF  MARYLAND.  493 


The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N — 1829. 

dinance  to  be  for  the  general  benefit  of  the  city,  and  not  for  the 
benefit  of  the  particular  district,  such  an  ordinance  is  not  in  pur- 
suance of  the  authority  conferred  by  the  charter,  and  is  void. 
And  such  it  is  contended  is  the  character  of  the  1 3th  section  of 
the  ordinance  of  the  9th  March,  1807,  providing  for  the  imposi- 
tion of  the  taxes  the  recovery  of  which  in  this  suit  is  resisted. 

The  provision  of  that  section  is  in  these  words,  "that  if  the 
commissioners  of  health,  shall  at  any  time  report  in  writing  to 
the  city  commissioners,  that  a  nuisance  exists  in  any  street,  lane 
or  alley  in  the  city  of  Baltimore,  which  will  endanger  the  health 
thereof,  and  the  city  commissioners  upon  a  full  examination 
thereof,  should  be  of  the  same  opinion,  and  that  the  same  can- 
not be  effectually  removed,  without  paving  such  street,  lane  or 
alley,  they  are  hereby  authorised  and  required,  to  proceed  to 
the  paving  of  such  street,  lane  or  alley,  and  to  issue  their  war- 
rant under  their  hands  to  the  city  collector,  directing  him  to  col- 
lect the  tax  which  may  be  imposed  for  the  paving  the  same,  &c. 

It  is  supposed  that,  it  appears  upon  the  face  of  this  ordinance, 
that  the  nuisance  here  authorised  to  be  removed  by  paving  the 
street,  £c.  in  which  it  may  be  found  to  exist,  is  such  a  nuisance 
only,  as  in.  the  opinion  of  the  commissioners  of  health  and  the 
city  commissioners,  will  endanger  the  health  of  the  city  generally, 
and  not  of  the  particular  district  in  which  the  paving  is  author- 
ised to  be  done,  and  the  tax  to  be  imposed ;  and  that  the  pav- 
ing and  taxing  is  intended  for  the  general  benefit  of  the  city  and 
not  of  the  particular  district.  If  such  be  the  true  construction 
of  the  ordinance,  it. cannot  be  questioned,  that  it  was  unauthor- 
ised by  the  charter,  and  that  provision  of  it  nugatory  and  void. 

But  to  arrive  at  that  conclusion,  it  must  either  be  assumed, 
that  a  nuisance  cannot  exist  in  any  particular  part  or  district  of 
the  city  of  Baltimore,  affecting  or  endangering  the  health  of 
such  particular  part  or  district,  without  also  so  affecting  or  en- 
dangering the  health  of  the  whole  city,  or  of  the  city  generally, 
as  to  be  a  matter  of  such  general  concern,  as  that  the  means  re- 
sorted to  for  removing  it,  can  only  be  paid  for  out  of  the  gen- 
eral fund,  and  not  by  a  tax  upon  the  particular  district  in  which 
it  may  exist ;  and  consequently  that  the  paving  contemplated 


•101          CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N — 1829. 

and  provided  for  by  this  ordinance,  could  only  have  appeared 
to  be,  and  been  intended  for  the  general  benefit  of  the  city,  and 
could  not  have  been  considered  to  be  and  intended  for  the  be- 
nefit of  the  particular  district  to  be  paved,  or  that  the  language 
of  the  ordinance  is  such,  as  to  show  the  object  of  the  paving 
provided  for,  to  be  the  general  benefit  of  the  city,  and  not  the 
benefit  of  the  immediate  district. 

With  respect  to  the  first  of  these  positions,  it  by  no  means  ap- 
pears to  us,  that  a  nuisance  cannot  exist  in  a  particular  part  or 
district  of  the  city  of  Baltimore,  affecting  or  endangering  the 
health  of  such  part  or  district,  without  also  affecting  or  endan- 
gering the  health  of  the  city  generally,  and  that  no  paving  can 
be  authorised  for  the  removal  of  a  nuisance  endangering  the 
health  of  a  particular  district,  without  having  for  its  object  the 
general  benefit  of  the  city,  and  not  the  benefit  of  the  district  in 
which  the  nuisance  may  exist.  And  if  such  a  nuisance  may  ex- 
ist, of  which  the  corporation  is  competent  to  judge,  it  has  au- 
thority, under  the  charter,  to  pass  an  ordinance  for  the  removal 
of  such  a  nuisance  by  paving,  and  to  impose  a  local  tax  for  that 
purpose,  if  it  shall  appear  to  be  for  the  benefit  of  the  particular 
district,  in  which  the  paving  is  authorised  to  be  done.  And  if 
there  be  nothing  expressed  in  this  ordinance  to  the  contrary,  the 
presumption  is,  that  the  nuisance  contemplated,  is  one  endan- 
gering the  health  of  the  immediate  district  in  which  it  exists, 
and  that  the  sole  object  of  the  paving  provided  for,  is  the  bene- 
fit of  that  particular  district.  Is  there  then  any  thing  in  the  lan- 
guage of  the  ordinance  to  sustain  the  second  position  ?  Is  there 
any  expression  pointing  to  the  preservation  of  the  general  health 
of  the  city,  or  to  the  general,  and  not  a  local  benefit,  as  the  mo- 
tive for  authorising  the  paving  provided  for? 

This  case  has  been  argued,  as  if  the  language  of  the  ordi- 
nance was,  "  which  will  endanger  the  health  of  the  city."  But 
whatever  might  be  the  effect  of  such  words  if  used,  that  is  not 
the  language  of  the  ordinance ;  the  commissioners  in  their  war- 
rants say  that  they  conceive  the  streets  directed  to  be  paved, 
"to  be  in  a  state  of  nuisance,  which  might  endanger  the  health 
of  the  city."  And  it  is  probable  that,  the  language  of  the  war- 


OF  MARYLAND.  495 


The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N.— 1829. 

rants  and  of  the  ordinance,  may  have  been  confounded  by  the 
counsel.  The  words  of  the  ordinance  are,  "  that  if  the  com- 
missioners of  health  shall  at  any  time  report  in  writing  to  the  city 
commissioners  that  a  nuisance  exists  in  any  street,  lane  or  alley 
in  the  city  of  Baltimore,  which  will  endanger  the  health  thereof," 
&c.  Not  in  terms  the  health  of  the  city,  but  thereof;  and  the 
question  is,  whether  the  word  thereof  must  he  held  to  relate  to 
the  city  of  Baltimore,  or  may  refer  to  the  street,  lane  or  alley 
in  which  a  nuisance  may  be  found  to  exist. 

The  power  given  by  the  charter  under  which  this  ordinance 
was  passed,  is,  "to  tax  any  particular  part  or  district  of  the 
city,  for  paving  the  streets,  lanes  or  alleys  therein,  or  for  sink- 
ing wells  or  erecting  pumps  which  may  appear  for  the  benefit 
of  such  particular  part  or  district."  Now  it  has  never  been 
pretended,  that  the  word  therein  in  that  clause  related  to  the 
city,  and  meant  for  paving  the  streets,  lanes  or  alleys,  in  the  city. 
But  it  has  always  been  considered,  (and  properly,)  that  it  rela- 
ted to  the  particular  part  or  district  of  the  city  to  be  taxed,  and 
meant  for  paving  the  streets,  lanes  or  alleys  in  such  particular 
part  or  district.  And  the  only  question  raised  on  that  clause  of 
the  charter,  in  the  Mayor,  8fc.  vs.  Moore  &f  Johnson  was,  whe- 
ther the  latter  part  of  it,  "which  may  appear  for  the  benefit  of 
such  particular  part  or  district,"  related  to  the  sinking  of  wells 
and  erecting  pumps,  or  extended  also  to  the  paving  the  streets, 
&c.  So  here  we  think  that  the  word  thereof  in  the  ordinance, 
does  not  relate  to  the  citypf  Baltimore,  so  as  to  make  it  mean  a 
nuisance  which  will  endanger  the  health  of  the  city  of  Balti- 
more: But  that  it  relates  to  ajny  street,  lane  or  alley,  fyc.,  and 
means  a  nuisance  that  will  endanger  the  health  of  such  street, 
Sfc.  The  words  in  the  city  of  Baltimore  being  only  used  as 
descriptive  of  where  the  street,  &c.  lies.  And  that  there  is 
nothing  appearing  upon  the  face  of  the  ordinance,  to  show  that 
the  general  benefit  of  the  city,  is  the  object  of  the  paving  pro- 
vided for,  and  not  the  benefit  of  the  particular  district  to  be  taxed. 

This  construction,  brings  the  ordinance  clearly  within  the 
power  conferred  by  the  charter,  and  although  it  is  true,  that 
a  corporation  must  act  within  the  limits  of  its  delegated  author!- 


496          CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N— 1829. 

ty,  and  cannot  go  beyond  it,  yet  it  ought  not  by  construction,  to 
be  made  to  mean  what  is  not  clearly  expressed;  but  when  an 
ordinance  will  admit  of  two  constructions,  it  should  receive, 
that  which  is  consistent  with  the  power  given,  and  not  that 
which  is  in  violation  of  it. 

The  other  ground  relied  upon  by  the  defendant,  is,  that  con- 
ceding the  ordinance  to  be  justified  by  the  charter;  yet  the 
power  given  by  it,  has  not  been  well  executed,  and  two  objec- 
tions are  raised  ;  first,  that  by  the  ordinance,  a  report  in  writing 
is  required  of  the  existence  of  a  nuisance,  &c.  by  the  commis- 
sioners of  health,  to  the  commissioners  of  the  city,  which  does 
not  appear  to  have  been  made.  Second,  that  the  ordinance  re- 
quires the  nuisance  to  be  of  such  a  character,  as  will,  in  the 
opinion  of  the  commissioners,  endanger  the  health,  &c.  and  that 
the  commissioners  have  not  so  stated. 

There  is  nothing  in  the  first  of  these  objections.  The  ordi- 
nance of  the  22d  of  March,  1807,  uniting  the  powers  and  duties 
of  the  city  commissioners  and  commissioners  of  health,  provides 
for  the  appointment  of  four  persons  to  be  city  commissioners  and 
commissioners  of  health,  with  all  the  powers  and  duties  united 
in  them,  of  the  commissioners  of  health  and  city  commissioners, 
and  surely  the  formality  of  a  written  report  by  them  to  them- 
selves was  necessarily  dispensed  with.  Besides  there  would  be 
an  inconsistency  between  the  two  ordinances,  the  one  uniting 
the  two  bodies  into  one,  and  the  pther  requiring  the  one  to  make 
a  report  to  the  other,  when  no  such  separate  bodies  existed, 
and  the  ordinance  of  the  22d  of  March,  1807,  expressly  repeals 
all  such  parts  of  the  ordinance  of  the  9th  of  March,  1807,  as 
are  inconsistent  with  any  thing  contained  in  it.  An  entry  in  the 
books  of  the  commissioners  of  their  decision  is  not  required, 
and  the  certificates  in  their  warrants  of  the  existence  of  the 
nuisances  and  of  their  characters,  would  have  been  sufficient,  if 
in  other  respects  the  ordinance  was  complied  with.  But  the 
ordinance  has  not  been  complied  with ;  the  warrants  of  the 
commissioners  should,  to  gratify  the  ordinance,  have  contained 
statements  of  the  existence  of  nuisances  in  the  respective 
streets  specified,  which  would  in  their  opinions  endanger  the 


OF  MARYLAND.  497 


Tfae  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N. — 1829. 

health  thereof,  and  not  that  they  might  do  so.  A  positive  and 
decided  opinion  is  required,  and  not  the  expression  of  a  doubt, 
as  to  the  dangerous  character  of  the  nuisance  to  be  remov- 
ed. And  it  is  evident  from  the  terms  used  by  the  commis- 
sioners, that  they  had  formed  no  decided  opinion  on  the  subject. 
They  say  in  each  warrant,  that  they  conceive  the  street  men- 
tioned, to  be  in  a  state  of  nuisance  which  miglit  endanger  the 
health  of  the  city,  apart  from  the  danger  they  speak  of  to  the 
health  of  the  city,  instead  of  the  health  of  the  particular  street, 
which  is  of  itself  a  departure  from  the  provision  of  the  ordi- 
nance; the  opinion  they  express,  is  not  such  as  the  ordinance  re- 
quires. The  nuisance  authorised  to  be  removed,  is  required  to 
be  such,  as  in  the  opinion  of  the  commissioners  will  be  dange- 
rous, and  not  such  as  may  by  possibility  be  dangerous ;  and  the 
second  objection  is  we  think  well  taken. 

The  second  exception  was  properly  abandoned  at  the  argu- 
ment. The  ordinance  requiring  the  evidence  of  the  existence 
of  a  nuisance,  and  of  its  dangerous  character  and  tendency,  to 
be  in  writing,  the  plaintiff  was  not  competent  to  prove  it  by  oral 
testimony  at  the  bar. 

The  action  for  money  paid,  laid  out  and  expended,  must  be 
founded  upon  a  contract  express  or  implied,  and  it  is  a  settled 
rule,  that  no  person  can  by  a  voluntary  payment  of  the  debt  of 
another,  without  his  authority,  make  himself  a  creditor  of  the 
person  whose  debt  is  thus  paid ;  but  if  one  is  compelled,  or  is  in 
a  situation  to  be  compelled  to  pay  the  debt  of  another,  as  in  the 
case  of  a  surety,  and  does  pay  it5/the  law  implies  a  promise  on 
the  part  of  him  for  whom  the  mopey  is  paid,  on  which  an  action 
may  be  sustained,  for  in  such  dase,  it  is  not  a  voluntary  but  a 
compulsory  payment. 

In  this  case  there  was  no  debt  due  by  the  defendants'  intes- 
tate, and  the  payment  made  by  the  plaintiffs  was  on  account  of 
a  contract  entered  into  between  the  commissioners  and  the  man 
who  did  the  paving.  But  if  there  had  been  a  debt  due  by  the 
defendants'  intestate  to  the  workman  who  did  the  paving,  which 
the  plaintiffs  were  not  compelled  to  pay,  a  voluntary  payment 
VOL.  I.— 63. 


CASES  IN  THE  COURT  OF  APPEALS 

The  Mayor  and  City  Council  of  Baltimore  vs.  Hughes'  Adm'r  D.  B.  N. — 1829. 

by  the  plaintiffs  without  the  authority  or  request  of  the  defen- 
dants' intestate  could  not  raise  an  assumpsit  against  him  ;  and 
there  is  no  evidence  of  any  such  authority  or  request.  Or  if 
the  defendants'  intestate  was  indebted  to  the  plaintiffs  on  ac- 
count of  the  taxes  imposed,  that  liability  would  not  sustain  a 
count  for  money  paid,  laid  out  and  expended,  which  is  the  fifth 
count  in  the  declaration  in  this  case. 

And  we  can  perceive  no  ground  on  which  the  construction 
prayed  for  to  the  jury,  that  the  plaintiffs  were  entitled  to  re- 
cover on  the  sixth  count  for  work  and  labor  done,  &c.  could 
have  been  properly  given.  The  defendants'  intestate  was  under 
no  legal  obligation  imposed  by  the  ordinance,  to  pay  for  the 
paving  done ;  and  the  work  was  not  done  at  his  instance,  but 
by  the  plaintiffs,  under  and  in  pursuance  of  one  of  their  own 
ordinances,  and  in  the  supposed  exercise  of  their  corporate 
powers. 

We  concur  therefore  in  opinion  with  the  court  below  on  all 
the  bills  of  exceptions. 

JUDGMENT   AFFIRMED. 

Abte.  The  doctrine  that  no  person  can  by  a  voluntary  payment  of  the 
debt  of  another,  without  his  authority  make  himself  a  creditor  of  the  person 
whose  debt  is  thus  paid,  has  been  qualified  by  the  Act  0/1829,  chap.  51,  which 
enacts  "that  any  assignee  or  assignees,  bona  Jide  entitled  to  any  judgment, 
bond,  specialty  or  other  chose  in  action  for  the  payment  of  money  by  assign- 
ment in  writing,  signed  by  the  person  or  persons  authorised  to  make  the  same, 
may  by  virtue  of  such  assignment,  sue  and  maintain  an  action  or  actions,  ex- 
ecution or  executions,  in  any  court  of  law  or  equity  in  this  State,  as  the  case 
may  require,  in  his,  her,  or  their  names  or  names  against  the  obligor  or  obligors, 
debtor  or  debtors,  therein  named,  saving  and  reserving  to  the  defendant  or  de- 
fendants, all  such  legal  or  equitable  defence  as  might  or  could  have  been  had 
or  maintained  against  the  assignor  or  assignors  at  the  time,  and  before'notice 
of  the  assignment,  in  the  same  manner  and  to  the  same  extent  as  if  no  such 
assignment  had  been  made."  REPS. 


OF  MARYLAND.  499 


Dugan  vs.  The  Mayor  and  City  Council  of  Baltimore 1829. 

DUCAN  vs.  THE  MAYOR  AND  CITY  COUNCIL  OP  BALTIMORE. — 

December,  1829. 

The  imposition  and  assessment  of  a  tax  by  the  Mayor  and  City  Council  of 
Baltimore,  under  and  in  pursuance  of  their  charter,  creates  a  legal  obliga- 
tion to  pay  such  tax,  on  which  the  law  raises  an  implied  assumpsit  by  the 
person  taxed. 

By  the  charter  of  the  City  of  Baltimore,  (act  of  1796,  ch.  68,  sec.  10,)  it  is 
provided  "that  the  person  or  persons  appointed  to  collect  any  tax  impos- 
ed in  virtue  of  the  powers  granted  by  this  act,  shall  have  authority  to  col- 
lect the  same  by  distress,  and  sale  of  the  goods,  and  chattels,  of  the  person 
chargeable  therewith,"  and  by  the  ordinance  of  the  corporate  authorities 
of  that  city  of  the  27th  March,  1817,  a  tax  was  imposed,  and  the  collector 
directed  to  deliver  to  each  taxable  person,  an  account  of  his  assessment 
and  tax  in  writing,  before  a  given  day;  and  if  the  tax  should  not  be  paid 
within  a  month  thereafter,  to  proceed  without  delay  to  recover  it 
agreeably  to  the  mode  prescribed  by  the  act  of  incorporation.  In  an 
action  brought  by  the  Mayor  and  City  Council  of  Baltimore  to  recover  a 
tax  imposed  by  the  ordinance  of  1817,  it  was  held  unnecessary  to  prove, 
that  the  Collector  had  delivered  the  account  before  mentioned  to  the  de- 
fendant; and  that  his  liability  to  be  sued,  in  no  manner  depended  upon 
the  diligence  or  negligence  of  the  collector. 

APPEAL  from  Baltimore  County  Court.  Jlssumpsit  to  recover 
a  sum  of  money  claimed  for  taxes  imposed  by  the  appellees, 
(the  plaintiffs  in  the  court  below)  on  the  appellant,  (the  defen- 
dant in  that  court.)  It  was  agreed,  that  the  acts  of  Assembly 
and  ordinances  referred  to  in  the  bill  of  exceptions,  might  be 
read  from  the  printed  copies,  witliout  being  inserted  in  the 
record. 

At  the  trial,  the  plaintiffs  offered  in  evidence  to  the  jury, 
an  act  of  the  General  Assembly/  of  Maryland,  entitled :  u  An 
act  to  erect  Baltimore  town,  in  Baltimore  county,  into  a  city, 
and  to  incorporate  the  inhabitants  thereof."  Passed  at  Novem- 
ber session,  1796,  ch.  68.  And  also  offered  in  evidence,  an 
ordinance  of  the  Mayor  and  City  Council  of  Baltimore,  entitled: 
"  An  ordinance  to  impose  a  tax  on  the  real  and  personal  pro- 
perty within  the  city  of  Baltimore,  and  to  provide  for  the  col- 
lection of  the  same  for  the  year  1817,  and  for  other  purposes." 
and  also  offered  in  evidence,  that  for  the  year  1817,  the  said 
defendant  was  duly  and  legally  assessed  with  real  and  per- 


500          CASES  IN  THE  COURT  OF  APPEALS 

Dugan  TS.  The  Mayor  and  City  Council  of  Baltimore. — 1829. 

sonal  property  in  the  city  of  Baltimore,  liable  to  taxation,  to 
the  value  of  $16,388,  and  that  the  taxes  properly  charge- 
able to  the  said  defendant  for  the  said  year,  amounted  to  the 
sum  of  $160  93,  to  recover  which  sum  this  suit  was  brought. 
The  plaintiffs  further  offered  in  evidence,  that  Thomas  Rogers 
was  the  collector  of  taxes  for  the  said  year,  and  that  Peregrine 
Welsh  was  employed  by  the  said  Thomas  Rogers  as  a  clerk 
and  agent  to  assist  in  the  collection  of  the  same,  and  that  some 
time  in  the  year  1818,  the  said  Peregrine  Welsh  called  on  the 
defendant  and  demanded  payment  of  the  said  sum  of  $160  92, 
due  as  aforesaid,  but  that  the  said  defendant  refused  to  pay  the 
same,  alleging  that  the  Mayor  and  City  Council  of  Baltimore 
were  indebted  to  him.  Whereupon,  the  said  defendant  prayed 
the  opinion  and  direction  of  the  court  to  the  jury,  that  the  plain- 
tiffs having  offered  no  evidence  to  prove,  that  the  said  collec- 
tor made  and  delivered  to  the  said  defendant,  an  account  in  wri- 
ting of  the  assessment  and  tax  of  the  said  defendant,  containing 
the  items  hi  words  at  length,  and  the  amount  thereof  in  figures, 
before  the  first  day  of  June,  in  the  year  1817,  or  at  any  time  be- 
fore the  commencement  of  this  suit,  were  not  entitled  to  recover 
in  this  action ;  and  the  defendant  further  prayed  the  opinion  and 
direction  of  the  court  to  the  jury,  that  upon  the  evidence  given 
in  this  cause,  the  plaintiffs  were  not  entitled  to  recover  in  this 
action;  which  opinions  and  directions  the  court  refused  to  give  to 
the  jury,  but  were  of  opinion  and  so  directed  the  jury,  that  if 
the  jury  believed  the  evidence  given  in  this  cause,  the  plaintiffs 
were  entitled  to  recover.  The  defendant  excepted,  and  the 
verdict  and  judgment  being  against  him,  he  prosecuted  this 
appeal. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  EARLE, 
MARTIN  and  ARCHER,  J. 

R.  Johnson,  for  the  appellant. 
J.  Scott ,  for  the  appellee. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  court 
By  the  10th  section  of  the  act  of  1796,  the  act  of  incorpora- 


OF  MARYLAND.  501 


Dugan  vs.  The  Mayor  and  City  Council  of  Baltimore 1829. 

tion  of  the  city  of  Baltimore,  authority  is  given  to^the  person  or 
persons  appointed  to  collect  any  tax  imposed,  in  virtue  of  the 
powers  granted  by  that  act,  to  collect  the  same  by  distress  and 
sale  of  the  goods  of  the  persons  chargeable  therewith ;  with  a 
provision,  that  if  the  tax  imposed,  shall  be  chargeable  on  real 
property,  it  may  be  recovered  by  action  of  debt,  or  attachment, 
in  case  no  goods  can  be  found  liable  to  be  distrained  upon. 

This  suit  was  brought  to  recover  an  amount  of  taxes,  claimed 
to  be  due  and  owing  by  the  appellant,  for  the  year  1817,  in 
virtue  of  an  ordinance  passed  by  the  corporation  on  the  27th 
of  March,  in  the  year  1817 :  "  To  impose  a  tax  on  the  real  and 
personal  property  within  the  city  of  Baltimore."  It  is  not 
contended,  that  the  corporation  had  not  the  power  by  the  char- 
ter to  impose  taxes  ;  nor  is  it  denied  that  the  particular  ordinance 
imposing  the  tax  in  question,  was  passed  in  pursuance  of  the 
powers  derived  under  the  charter.  But  it  is  urged,  that  unless 
the  provisions  of  the  fifth  section  of  the  ordinance,  directing 
the  collector  to  deliver  to  each  taxable  person,  &c.  an  account 
in  writing,  of  his  assessment  and  tax,  containing  the  items  in 
words  at  length,  and  the  amount  thereof  in  figures,  before  the 
1  st  of  June  next,  after  the  passage  of  the  ordinance  were  pur- 
sued, no  action  would  lie;  and  that  there  being  no  evidence 
of  a  delivery,  &c.  by  the  collector  to  the  appellant,  of  such 
an  account  as  is  directed  by  the  ordinance,  this  action  cannot  be 
maintained,  and  in  support  of  this  proposition,  the  stat.  of  2d 
Geo.  2d,  ch.  23,  sec.  23,  and  the  decisions  under  it  are  relied 
on.  But  the  analogy  insisted  on  is  not  perceived.  The  lan- 
guage of  the  stat.  of  2d  Geo.  2a,  is  imperative;  it  provides  that 
no  attorney  or  solicitor  shall  commence  or  maintain  any  action 
or  suit,  until  the  expiration  of  a  month  or  more,  after  he  shall 
have  delivered  a  bill  of  his  fees,  &c.  to  the  party  to  be  charged, 
&c.  thus  expressly  declaring,  that  no  action  shall  either  be 
brought  or  maintained,  until  the  provisions  of  the  statute  have 
been  first  complied  with  ;  but  that  is  not  the  character  of  this 
ordinance  ;  it  neither  expressly  forbids  the  bringing  of  a  suit  be- 
fore the  delivery  of  the  account,  nor  impliedly,  by  authorising  or 
directing  a  suit  to  be  brought,  in  the  event  of  the  tax  not  being 


50«         CASES  IN  THE  COURT  OF  APPEALS 

Dugan  w  The  Mayor  and  City  Council  of  Baltimore. — 1829. 

paid  by  the  time  prescribed.  It  has  no  relation  to  the  bringing 
of  a  suit,  but  only  to  the  summary  mode  provided  by  the  charter 
of  collecting  the  tax  by  a  distress  and  sale  of  the  goods.  It  is 
seen  that  by  the  10th  section  of  the  charter,  the  person  appoint- 
ed to  collect  the  taxes,  imposed  by  the  corporation,  is  impow- 
ered  to  do  so  by  distress  and  sale  of  the  goods  of  the  persons 
chargeable  with  them.  The  4th  section  of  the  ordinance  pro- 
vides for  the  appointment  of  a  collector.  And  the  5th  section, 
the  office  of  which  is  to  prescribe  his  duties,  after  providing 
that  he  shall  deliver  to  each  taxable  person,  an  account  of  his 
assessment  and  tax  in  writing,  on  or  before  the  first  of  June 
next,  after  the  passing  of  the  ordinance,  goes  on  to  direct  him, 
if  the  tax  should  not  be  paid  by  the  first  of  July  following,  to 
proceed  without  delay  to  recover  it,  agreeably  to  the  mode 
prescribed  by  the  act  of  incorporation,  that  is  by  distress  and 
sale  of  the  goods,  and  not  by  suit,  which  he  had  no  authority 
either  by  the  charter  or  ordinance  to  institute.  It  is  true  that  the 
collector  was  not  authorised  to  collect  the  tax  by  distress,  and 
sale  of  the  goods,  without  having  first  delivered  an  account  of 
the  assessment  and  tax  to  the  party  to  be  charged,  according  to 
the  directions  of  the  ordinance,  who  was  entitled  to  that  notice, 
before  his  property  could  be  proceeded  against  in  the  summa- 
ry mode  provided  by  the  charter,  and  without  such  notice  his 
property  could  not  be  distrained  upon  and  sold.  But  though  his 
goods  would  be  protected  from  distress  and  sale  by  the  collec- 
tor, it  would  not  therefore  follow,  that  he  could  not  be  sued  by 
the  corporation  for  the  amount  of  the  taxes  due.  His  liability 
to  be  sued  or  not,  in  no  manner  depended  upon  the  diligence  or 
negligence  of  the  collector  in  the  discharge  of  his  duty,  as  pre- 
scribed by  the  fifth  section  of  the  ordinance,  which  has  no  rela- 
tion to  that  subject. 

In  the  Mayor  and  City  Council  vs.  Howard,  6  Harr.  fy 
Johns.  383,  it  was  decided  by  this  court  in  relation  to  the  10th 
section  of  the  act  of  incorporation,  that  the  giving  a  remedy  by 
distress  or  action  of  debt,  was  cumulative  only,  and  did  not  take 
away  the  action  arising  by  implication,  on  the  legal  obligation 
to  pay  a  claim  created  by  law.  The  tax  for  which  this  suit 


OF  MARYLAND.  503 


Warfield  vs.  Gambrill.— 1829.  . 


was  brought  was  imposed  by  virtue  of  that  act,  the  imposition 
and  assessment  of  which  created  the  legal  obligation  to  pay,  on 
which  the  law  raised  an  implied  assumpsit  j  independent  of  the 
notice  required  by  the  fifth  section  of  the  ordinance,  as  a  foun- 
dation for  a  summary  mode  of  recovery,  and  unaffected  by  the 
omission  of  the  collector  to  do  his  duty — which  omission  (if  an 
account  was  not  delivered  as  required  by  the  ordinance,) 
though  it  caused  the  loss  of  the  right  to  collect  the  tax  by  dis- 
tress and  sale  of  the  goods,  left  the  right  to  recover  on  the  ori- 
ginal implied  assumpsit  unimpaired — an  assumpsit  raised  by  the 
law,  on  the  imposition  and  assessment  of  the  tax,  and  not  to 
arise  on  the  delivery  by  the  collector  of  an  account  of  the  as- 
sessment and  tax. 

JUDGMENT  AFFIRMED. 


WARFIELD  vs.  GAMBRILL. — December,  1829. 

To  obtain  a  partition  of  land  in  equity,  the  complainant  must  allege  and  es- 
tablish a  seisin  in  himself. 

To  a  bill  praying  for  a  partition  of  lands,  alleging  a  seisin  in  the  complain- 
ant with  others,  the  defendant  in  his  answer  did  not  respond  to  the  aver- 
ment of  seisin:  the  cause  being  set  down  for  hearing  upon  bill  and  answer, 
the  silence  of  the  defendant  is  no  admission  of  that  fact,  and  the  complain- 
ant having  taken  no  proof  of  it,  his  bill  was  dismissed. 

A  respondent  submitting  to  answer  must  answer  fully,  but  if  the  answer  be 
defective  and  insufficient  to  meet  the  allegations  and  interrogatories  of  the 
bill,  the  complainant  desiring  a  fuller  response  must  except  to  the  answer; 
if  he  do  not,  he  cannot  rely  upon  the/silence  of  the  respondent,  in  relation 
to  any  material  allegation,  but  must  prove  it. 

Where  G  by  his  last  will  devised  certain  tracts  of  land  to  his  three  sons  in 
fee,  and  also  devised  to  his  daughters,  "the  right,  privilege  and  liberty  of 
residing  and  living  in  the  houses  with,  and  using  and  cultivating  with  them- 
selves and  their  negroes,  and  of  keeping  their  negroes,  stock,  and  all  their 
other  property  thereon,  and  with  them,  in  common  with  my  sons,  all  my 
lands  during  the  term  that  my  said  daughters  should  remain  single  and 
unmarried,"  it  was  held  that  the  daughters  did  not  take  an  estate  for  life, 
or  any  other  less  estate,  in  common  with  their  brothers,  which  was  suscep- 
tible of  partition;  and  that  the  devise  to  them  was  a  mere  charge  for  their 
benefit  upon  the  lands  of  the  testator,  and  incapable  of  alienation  to  a 
stranger.  PER  BLAND  CHANCELLOR. 


504          CASES  IN  THE  COURT  OF  APPEALS 

War-field  n.  Gambrill — 1829. 

APPEAL  from  a  decree  of  the  Court  of  Chancery  dismissing 
the  bill  of  the  complainant  (now  appellant.) 

The  bill  filed  on  the  26th  December,  1825,  stated  that  the  com- 
plainant, Launcelot  Warfield  was  seized  in  fee  of  seven  eighths 
of  two  tracts  of  land  in  Jlnnc  Arundel  county,  called  "Friend- 
ship" and  "  What  you  please"  with  remainder  in  fee  of  the  other 
one-eighth  on  the  death  of  the  defendant  Lydia  Gambrill,  who 
was  entitled  as  tenant  in  common,  with  complainant  during  her 
natural  life  to  one  undivided  eighth  part.  That  the  said  Lydia 
was  then  in  the  possession  of  the  whole,  and  prayed  that  a  de- 
cree might  pass  for  a  partition  of  the  same  according  to  the 
rights  of  the  parties. 

The  answer  of  Lydia  Gambrill  states  that  her  father  Augus- 
tine Gambrill  died  in  the  year  1790,  leaving  three  sons  and  five 
daughters.  That  to  two  of  his  sons  together  with  his  daugh- 
ters he  left  his  dwelling  plantation  as  tenants  in  common,  and 
that  they  all  to  wit,  Richard  and  Augustine  the  sons,  and  the 
five  daughters  held,  and  cultivated  the  same  as  such,  until  three 
of  the  daughters  married,  when  this  defendant,  and  the  remain- 
ing sister  believed  they  were  entitled  to  one  half  of  said  planta- 
tion so  long  as  they  remained  single.  That  in  the  year  1807, 
Richard,  sold  his  interest  to  his  brother  Augustine,  who  as  they 
believe  was  previously  entitled  to  one  fourth.  The  answer  fur- 
ther states,  that  Susannah  the  only  unmarried  sister  of  the  de- 
fendant died  in  the  year  1824,  and  she  submits  to  such  decree 
as  the  Chancellor  upon  consideration  of  her  fathers  will  may 
deem  it  just  to  pass. 

The  will  of  Augustine  Gambrill  referred  to  in  the  answer, 
contains  the  following  clauses. 

"I  give  and  devise  unto  my  sons  Richard  Gambrill,  and  Au- 
gustine Gambrill,  and  their  heirs  equally  to  be  divided  between 
them,  my  dwelling  plantation,  being  parts  of  the  tracts  of  land, 
called  "Friendship,"  and  "  What  you  please"  Item  "I  give  and 
devise  to  my  son  William  Gambrill,  and  his  heirs  forever,  all 
my  undivided  part  of  the  tract  of  land  called  "  Young's  Success.^ 
Item  "I  give  and  devise  to  my  daughters  Lydia,  Susannah, 
Elizabeth,  Margaret  and  Sarah  Gambrill,  the  right,  privilege, 


OF  MARYLAND.  505 


Warfield  vr  Gambrill.— 1829. 


and  liberty  of  residing  and  living  in  the  houses  with,  and  using 
and  cultivating  with  themselves,  and  their  negroes,  and  of  keep- 
ing their  negroes,  stock,  and  all  their  other  property  thereon, 
and  with  them,  in  common  with  my  sons  Richard  Gambrill,  Au- 
gustine Gambrill,  and  William  Gambrill,  all  my  lands  during 
the  time  that  my  said  daughters  shall  remain  single  and  unmar- 
ried." 

BLAND,  Chancellor  at  July  term,  1 826,  passed  an  interlocu- 
tory decree  for  a  par*;tion,  and  ordered  a  commission  in  the 
usual  form  according  to  the  act  of  Assembly,  to  divide  the  land 
in  the  proceedings  mentioned,  which  commission  accordingly 
issued,  and  was  returned  with  a  plat  annexed,  designating  the 
manner  in  which  the  division  had  been  made. 

Afterwards  at  September  term,  1826,  the  following  decree 
was  passed  by 

BLAND,  Chancellor.  This  case  standing  ready  for  hearing, 
and  the  notes  of  the  complainant's  solicitor  having  been  read, 
and  the  argument  of  the  defendants  solicitor  having  been  heard, 
the  proceedings  were  read  and  considered. 

This  case  was  submitted  at  the  last  July  term  without  argu- 
ment, or  notes,  or  any  opposition  by  counsel,  and  the  interlocu- 
tory decree  was  accordingly  signed  by  the  Chancellor,  under 
an  apprehension,  not  only  that  a  partition  might  be  made,  but 
that  it  was  in  reality  the  wish  of  the  parties.  The  answer  of 
the  defendant  is  badly  and  obscurely  drawn  and  expressed,  in 
so  much  so,  that  even  the  defendant's  present  solicitor  seemed 
by  the  course  of  his  argument  to  be  under  an  impression,  that 
it  had  admitted  a  partition  might  be  decreed.  But  it  appears 
on  a  more  careful  consideration  of  the  answer,  that  the  defen- 
dant meant  to  state  facts,  and  to  assert,  not  to  yield  up,  any  of 
her  claims,  or  pretensions,  in  any  manner  whatever.  And  in 
substance  she  has  claimed  all  that  the  will  of  her  father  enti- 
tles her  to,  either  at  law  or  in  equity.  The  whole  case  there- 
fore now  rests  upon  what  shall  be  considered  to  be  the  true  in- 
tent and  meaning  of  the  last  will  of  Augustine  Gambrill  deceased. 
VOL.  1.— 64. 


506          CASES  IN  THE  COURT  OF  APPEALS 

Warfield  vs.  Gambrill.— 1822. 

By  that  will  the  testator  gave  the  lands  in  the  proceedings 
mentioned  to  his  two  sons  Rickard  and  Jlugustine,  as  tenants  in 
common  in  fee;  and  to  his  son  William  he  gave  in  fee  another 
parcel  of  land ;  and  then  he  says,  "  I  give  and  devise  to  my 
daughters  Lydia,  Susannali,  FMzabcth,  Margaret  and  Sarah 
Gambrill,  the  rigid,  privilege  and  liberty  of  residing  and  living  in 
the  houses  with,  and  using  and  cultivating  with  themselves,  and 
their  negroes,  and  of  keeping  their  negroes,  stock,  and  all  their 
other  property  thereon,  and  with  them,  in  common  with  my 
sons,  Richard  Gambrill,  Augustine  Gambrill  and  William  Gam- 
brill,  all  my  lands  during  the  time  that  my  said  daughters,  Lydia, 
Susannah,  Elizabeth,  Margaret,  and  Sarah  Gambrill,  shall  re- 
main single  and  unmarried." 

The  devises  to  his  sons  are  in  two  separate  and  distinct  par- 
cels, and  the  interest  given  to  his  daughters  he  declares  they 
shall  enjoy  "in  common  with  his  sons,  Richard,  Jlugustine  and 
William."  But  there  is  no  community  of  estate  or  interest  given 
to  his  three  sons.  Richard  and  Jlugustine,  take  as  tenants  in 
common,  but  William  takes  in  severally.  It  is  obviously  not 
the  intention  of  the  testator,  to  blend  that  among  his  sons  which 
he  had  so  given  to  them  in  two  distinct  parcels.  Hence  he  can 
only  be  understood  to  mean,  that  his  five  daughters  shall  take 
an  interest  in  common  with  Richard  and  Jlugustine,  in  the  lands 
given  to  them  as  tenants  in  common,  and  also  an  interest  in  com- 
mon with  William  in  the  lands  given  to  him  in  severally.  And 
consequently  if  the  daughters  were  to  be  considered  as  tenants 
in  common,  of  an  estate  for  life  defeasible  by  marriage  as  has 
been  contended,  they  then  must  each  of  them  be  considered  as 
a  tenant  in  common,  taking  one  seventh  of  the  lands  given  to 
Richard  and  Jlugustine,  "and  one  sixth  of  that  given  to  William, 
and  not  merely  one  eighth  of  that  given  to  Richard  and  Jlugus- 
tine— and  therefore  for  this  reason  alone  the  interlocutory  de- 
cree of  the  twelfth  day  of  July  last,  and  the  proceedings  under 
it,  are  totally  erroneous  and  cannot  be  allowed  to  stand. 

But  these  five  daughters  of  the  testator  do  not  take  an  estate 
for  life,  or  any  other  less  estate  in  common  with  their  brothers, 
RicliardanA  Jlugustine,  in  the  hnds  in  the  proceedings  mention- 


OF  MARYLAND.  507 


Warfield  vs.  Gambrill — 1829. 


ed,  which  is  susceptible  of  partition.  The  difference  of  the  testa- 
tor's language  and  consequently  in  his  intention,  in  the  clauses  of 
his  will,  in  which  he  provides  for  his  sons,  and  for  his  daughters 
is  strong,  and  clear.  To  his  sons  Richard,  and  Augustine,  he 
gives  an  estate  as  tenants  in  common  in  fee  of  his  dwelling  plan- 
tation; and  to  his  son  William  he  gives  an  estate  in  fee,  and  in 
several ty  of  another  parcel  of  land,  and  he  then,  charges  all 
his  real  estate  thus  fully  disposed  of,  with  certain  uses,  for  the 
personal  benefit  of  five  daughters,  as  long  as  they  continue  un- 
married. In  such  case  his  meaning  is  expressed  in  terms  pecu- 
liarly apt,  suitable,  and  proper.  "I  give  and  devise  (he  says) 
unto  my  sons  Richard  and  Jlugustine,  and  their  heirs  equally  to 
be  divided  between  them,  my  dwelling  plantation — and  to  my 
son  William  and  his  heirs  forever  my  land  called  Young's  Suc- 
cess." And  he  then  gives  and  devises  to  his  daughters,  not  an 
estate,  of  any  kind,  not  an  interest  in  any  portion  of  his  land  for 
life,  during  their  celibacy,  or  for  any  time  or  upon  any  condition; 
but  as  he  himself  perspicuously  expresses  it,  "I  give  and  devise 
to  my  daughters,  the  right,  privilege,  and  liberty  of  living  in  the 
house  with,  &c.  in  common  with  my  sons,  all  my  lands,  during 
the  time  they  shall  remain  single  and  unmarried." 

The  manifest  object  of  the  testator  was  to  provide  a  home  for 
his  daughters,  and  for  that  purpose  he  has  charged  all  his  real 
estate,  so  far  as  was  necessary  to  attain  his  object,  and  no  far- 
ther ;  in  the  dwelling  in  which  he  left  them,  or  in  any  of  the 
houses  on  his  land,  he  gave  to  each  of  them,  the  right,  privilege, 
and  liberty  of  continuing  to  reside^or  leaving,  and  returning  to 
as  a  home,  as  they  thought  proper-,  at  any  time  during  their  ce- 
libacy. And  that  this  habitation,  which  he  had  thus  given  them, 
might  be  made  as  comfortable  as  it  had  been,  or  as  it  was  in 
their  power  to  make  it,  he  gave  them  the  right,  privilege  and 
liberty,  of  using  and  cultivating  all  his  lands,  with  themselves  and 
their  negroes,  and  of  keeping  their  negroes,  stock,  and  all  their 
other  property  tlttreon,  and  with  them,  in  common  with  his  sons. 
It  is  a  devise  of  a  personal  right,  privilege  and  liberty,  to  each 
one  of  his  daughters;  a  benefit  which  each  one  might  take  or 
abandon  at  pleasure,  so  long  as  she  remained  single.  It  is  not  a 


508          CASES  IN  THE  COURT  OF  APPEALS 

Warfield  vt.  Gambrill — 1829. 

devise  of  any  real  estate,  or  of  a  diattel  interest  to  the  daughters, 
but  it  is  a  mere  charge  for  their  benefit;  upon  all  the  lands  of 
the  testator,  which  is  inalienable,  and  indivisible  in  its  nature. 
It  is  a  benefit  to  be  taken  or  relinquished  only  by  the  person  to 
whom  it  is  given,  and  with  whose  person  it  is  inseparately  con- 
nected. Each  one  of  the  daughters  might  release  her  privilege, 
or  as  the  answer  states,  might  rent  her  privilege  to  her  brother, 
or  the  holder  of  the  land  for  a  certain  sum  per  annum;  but  nei- 
ther of  them  could  alien  or  transfer  her  privilege  to  a  stranger, 
and  thereby  introduce  a  new  and  unwelcome  inmate  into  her 
brothers  household.  Nor  could  any  one  of  them  use  and  culti- 
vate the  lands,  in  any  other  manner  than  by  themselves  and  their 
negroes,  or  put  upon  the  lands,  any  negroes,  stock,  or  other  pro- 
perty, if  she  herself  could  reside  ori  no  part  of  the  lands,  be- 
cause the  testator  has  declared,  it  should  only  be  "thereon  and 
vnlh  them"  It  is  an  intangible  privilege,  extended  over  the 
whole  of  the  testator's  real  estate,  vested  in  each  one  of  his 
daughters.  It  cannot  be  confined  to  the  lands  given  to  Richard 
and  Augustine,  or  to  those  given  to  William,  because  it  has  been 
spread  without  distinction  over  them  all.  Its  extent  cannot  be 
designated  by  any  metes  and  bounds,  or  represented  by  any 
number  of  acres.  It  is  an  incorporeal  right  vested  in  each  one 
of  five  persons,  in  her  character  of  daughter,  and  because  of  that 
character,  to  dwell  in  any  house,  and  to  put  her  stock  to  graze 
in  any  pasture  upon  the  whole  of  the  testator's  lands.  It  is  there- 
fore a  mere  charge,  and  not  in  any  respect  such  an  estate,  in  the 
land  as  is  capable  of  being  separated  and  partitioned  off. 

These  charges  are  incumbrances  upon  the  testator's  real  es- 
tate, which  it  appears  he  contemplated  would  be  lessened,  or 
extinguished,  by  the  relinquishment,  marriage  or  death  of  the 
five  claimants,  it  seems  are  now  reduced  to  one  only,  that  is  Ly- 
dia  the  present  defendant,  who  is  at  this  time  in  the  perception 
and  enjoyment  of  this  right,  privilege  and  liberty,  which  her 
father  gave  her,  and  which  this  court  has  neither  the  power  nor 
the  disposition  to  diminish,  or  impair  by  partition,  or  in  any 
other  manner  whatever. 


OF  MARYLAND.  509 


Warfield  vs.  Gambrill — 1829. 


DECREED,  that  the  bill  of  complaint  be  dismissed  with  costs. 
From  which  decree  the  complainant  appealed  to  the  Court  of 
Appeals. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  EARLE, 
MARTIN  and  ARCHER,  J. 

Jl.  C.  Magruder  and  Shaw,  for  the  appellant,  contended,  1. 
That  the  appellee  during  her  single  life  is  entitled  to  one  undi- 
vided eighth  part  of  the  land  devised  by  her  father,  or  if  she 
is  not  so  entitled,  she  is  entitled  to  nothing  in  consequence  of  the 
devise  to  the  daughters  being  unintelligible  and  therefore  void. 
2.  A  devise  of  the  use  of  land,  is  equivalent  to  a  devise  of  the 
laud  itself— they  cited  3  Bac.  Abrid.  391.  2  Blk.  Cam.  20. 

R.  Johnson  for  the  appellee.  The  complainant  has  shown 
no  right  to  ask  for  a  partition  of  the  lands.  He  shows  no  right 
or  interest  in  himself  in  the  land  in  question — no  exhibits  or  ti- 
tle papers  of  any  kind  are  filed,  and  the  answer  so  far  from  ad- 
mitting the  title  of  complainant,  affirms  that  the  title  is  in  ano- 
ther person.  A  party  applying  for  a  partition  must  show  a  title. 
Hopkins  vs.  Stump,  1  Johns.  Ch.Rep.  111.  If  the  answer  does 
not  deny  the  allegations  in  the  bill,  the  complainant  should  have 
excepted  to  it,  and  he  is  not  now  at  liberty  to  assume  as  true, 
what  is  not  denied.  Wilkin  and  others  vs.  Wilkin,  2  Harr.  $• 
Johns.  301.  Young  vs.  Grundy,  6  Cranch,  51. 

ARCHER,  J.  delivered  the  opinion  of  the  court. 

The  complainant  seeks  a  pai-tition  of  the  tracts  of  land  de- 
scribed in  the  bill,  alleging  a  seisin  in  seven-eights  of  said  tracts, 
and  that  the  respondent  is  in  possession  of,  and  exercising  acts 
of  ownership  over  the  whole  of  the  lands. 

The  answer  of  the  respondent  states  that  Augustine  Gam- 
brill,  the  father  of  the  respondent,  devised  his  dwelling  planta- 
tion to  his  two  sons,  Richard  and  Augustine  Gambrill,  and  to 
his  five  daughters;  after  which  she  states  that  by  the  intermar- 
riage of  three  of  her  sisters,  and  the  death  of  one  of  them,  and 
by  a  sale  from  her  brother  Richard,  to  her  brother  Augustine 
Gambrill,  she  considered  that  she  became  entitled  to  one-third 


510          CASES  IN  THE  COURT  OF  APPEALS 

Warfield  vs.  Gambrill.— 4829. 

of  the  land,  and  her  brother  Augustine  Gambrill,  to  two-thirds 
thereof. 

The  cause  is  set  down  for  hearing,  and  an  interlocutory  de- 
cree passes  at  July  term,  1826,  for  partition,  and  commission- 
ers are  accordingly  appointed  to  make  partition.  Upon  the  re- 
turn of  the  commissioners  at  October  term,  1826,  the  Chancellor 
dismissed  the  complainants  bill,  from  which  decree  this  appeal 
has  been  taken. 

We  do  not  feel  ourselves  called  upon  to  express  any  opinion 
on  the  will  of  Augustine  Gambrill,  but  shall  decide  the  cause 
upon  the  bill  and  answer. 

The  bill  alleges  a  seisin  of  seven  undivided  eighth  parts  of 
this  land,  and  the  seisin,  should  have  been  proved  by  the  com- 
plainant, or  admitted  by  the  answer.  The  complainant  rely- 
ing upon  the  answer  exhibited  no  proof  of  seisin,  but  set  the 
cause  down  for  hearing  upon  the  coming  in  of  the  answer. 

By  a  reference  to  the  answer  it  will  be  found  to  contain  no 
admission  of  any  allegation  in  the  complainants  bill,  except  her 
possession  of  the  land.  Her  answer  is  very  defective  and  inar- 
tificial; and  it  is  only  indeed  by  inference  that  we  can  arrive  at 
the  conclusion,  that  she  is  speaking  of  the  lands  referred  to  in 
the  bill,  but  considering  what  is  only  a  matter  of  inference,  as 
certain,  and  that  the  lands  of  which  she  speaks,  are  the  lands  of 
which  the  complainant  seeks  partition,  there  is  not  only  no  ad- 
mission of  right  or  title  in  the  complainant  but  an  averment 
of  title  in  herself,  and  Augustine  Gambrill  her  brother.  In  this 
stage  of  the  cause  the  complainant  was  called  on  for  proof  of 
his  allegations,  and  exhibiting  none,  but  setting  the  cause  down 
for  hearing,  his  bill  was  rightfully  dismissed  by  the  Chancellor. 

But  supposing  there  is  no  denial  of  title  in  the  answer,  and 
that  the  material  allegation  in  the  bill,  the  seisin  of  the  com- 
plainant is  unanswered,  this  is  clearly  no  ad  mission  of  any  unan- 
swered fact.  Chancellor  Hanson,  2  Harr.  fy  Johns.  301 ,  says, 
if  any  material  matter  charged  in  the  complainants  bill,  has 
been  neither  denied  nor  admitted  by  the  answers,  it  stands  on  the 
hearing  of  the  cause  for  naught,  and  in  6  Cranch,  51,  Young  vs. 
Grundy,  Ch.  J.  Marshall,  in  delivering  the  opinion  of  the  court, 


OF  MARYLAND.  511 


Gowan  vs.  Sumwalt — 1829. 


says,  "that  if  the  answer  neither  admits  nor  denies  the  allega- 
tions of  the  bill,  they  must  be  proved  upon  the  final  hearing. 
Upon  a  question  of  dissolution  of  an  injunction,  they  are  to  be 
taken  as  true."  A  respondent  submitting  to  answer  must  an- 
swer fully,  but  if  the  answer  be  defective,  and  insufficient  to 
meet  the  allegations  and  interrogatories  of  the  bill,  the  com- 
plainant desiring  a  fuller  response  must  except  to  the  answer. 
If  he  do  not  he  cannot  rely  on  the  silence  of  the  respondent  in 
relation  to  any  material  allegation,  but  must  prove  it. 

DECREE  AFFIRMED. 


GOWAN  vs.  SUMWALT. — December,  1829. 

It  is  the  common  practice,  where  a  purchaser  under  a  decree  in  Chancery 
is  kept  out  of  possession  by  the  former  owner,  for  the  Chancellor  to  inter- 
pose the  authority  of  that  court,  and  cause  the  possession  to  be  delivered  up. 

But  where  G  purchased  property  at  a  sale  under  a  decree,  and  gave  his 
notes  with  S  as  his  surety  for  the  purchase  money,  which  S  was  after- 
wards obliged  to  pay,  and  G  then  executed  a  deed  of  the  same  property 
to  S,  which  however  was  left  with  I  as  an  escrow,  to  be  delivered  upon  a 
condition  that  did  not  appear  to  have  been  performed,  G  being  in  posses, 
sion,  could  not  be  ousted  by  the  authority  of  the  Court  of  Chancery;  and 
even  if  a  mortgage  had  been  executed  by  him  to  secure  S,  the  proceed- 
ings in  Chancery  should  be  of  a  different  character. 

APPEAL  from  the  Court  of  Chancery.  The  proceedings 
which  took  place  on  the  petitioii  which  was  filed  in  this  case  by 
the  appellee,  Frederick  SumicbU,  on  the  12th  of  April,  1826,  are 
sufficiently  set  forth  in  the  opinion  delivered  by  this  court. 

BLAND,  Chancellor,  (March  term,  1827.)  This  matter  stand- 
ing ready  for  hearing,  and  the  solicitors  of  the  parties  having 
been  heard,  the  proceedings  were  read  and  considered.  The 
only  question  is  whether  in  point  of  fact  Sumwalt  was  with  the 
consent  of  Gowan  to  take  his  place,  and  be  considered  as  the 
purchaser  from  the  trustees.  I  am  satisfied  from  the  proofs  that 
Gowan  did  agree,  that  Sumwalt  should  be  deemed  the  purcha- 


512         CASES  IN  THE  COURT  OF  APPEALS 

Gowan  rt.  Sumwalt. — 1829. 

ser ;  and  having  thus  failed  to  shew  sufficient,  cause  as  required 
by  the  order  of  the  13th  of  April,  1826,  it  is  therefore  ordered 
that  an  injunction  issue,  commanding  the  said  Gowan  to  deliver 
possession  of  the  property  in  the  proceedings  mentioned,  to  the 
said  Sumwalt,  returnable  forthwith.  From  this  order  the  de- 
fendant appealed  to  the  Court  of  Appeals. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  ARCHER  and  DORSEY,  J. 

Flusser  for  the  appellant,  cited  4  Com.  Dig.  473,  (Am.  Ed.) 
274,  (note  r.)  Rob.  on  Frauds,  108.  Sugd.  68.  JVetcZ.  Pr.  339, 
142,  150.  Sugd.  40. 

Winchester  for  the  appellee  contended,  that  Gf wean's  rights 
were  not  affected  by  the  decision  of  the  Chancellor;  and  that 
an  appeal  would  not  lie  from  an  order  to  deliver  possession. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  court. 

The  substance  of  this  case  as  it  is  presented  to  us  by  the 
proceedings,  appears  to  be  this.  A  decree  in  Chancery  being 
passed,  aud  trustees  appointed  for  the  sale  of  a  certain  lot  or 
parcel  of  ground  in  the  city  of  Baltimore;  the  premises  were 
sold  at  public  sale  by  the  trustees,  and  purchased  by  Goican, 
the  appellant,  who  passed  his  notes  for  the  purchase  money, 
with  Sumwalt  the  appellee,  and  another,  as  his  sureties.  The 
sale  was  regularly  reported  by  the  trustees,  and  ratified  and  con- 
firmed by  the  Chancellor;  and  the  purchase  money  not  being 
paid,  suits  were  brought,  and  judgments  obtained  against  the 
purchaser,  Gowan,  and  his  securities.  Sumwalt  discharged  the 
judgments  obtained  for  the  purchase  money,  and  the  trustees 
and  Gowan  united  in  an  instrument  of  writing,  purporting  to  be 
a  deed  to  Sumwalt  for  the  premises,  which  had  been  before 
sold  to  Gowan.  Gowan  continuing  in  possession,  Sumwalt  pre- 
ferred a  petition  to  the  Chancellor,  alleging  that  he  had  been 
substituted  as  the  purchaser,  and  that  a  deed  for  the  premises 
had  been  made  to  him  by  Gowan  and  the  trustees,  and  praying 
an  order  to  compel  Gowan  to  deliver  up  the  possession.  Gowan 


OF  MARYLAND.  513 


Gowan  vs.  Sumwalt — 1829. 


in  his  answer  positively  denies  that  it  ever  was  agreed  or  un- 
derstood, that  Sumwalt  should  be  substituted  in  his  stead  as  the 
purchaser,  or  that  he  ever  was  so  substituted;  and  states  that  it 
was  agreed  between  them,  that  Sumwalt  should  take  a  deed  of 
conveyance  of  the  premises  from  the  trustees,  and  execute  a 
bond  to  reconvey  to  him,  on  being  reimbursed  the  amount  of  the 
purchase  money  by  a  stipulated  time;  and  alleges  that  when  the 
deed  was  executed,  it  was  left  by  him  in  the  hands  of  a  third 
person  to  be  delivered  to  Sumwalt,  on  his  executing  and  deliv- 
ering a  bond  to  reconvey  the  property  to  him,  on  the  terms  be- 
fore agreed  upon,  and  not  otherwise;  but  that  Sumwalt  after- 
wards by  fraud  and  artifice  obtained  possession  of  the  deed,  and 
then  refused  to  execute  a  bond  of  conveyance,  and  expressed 
his  determination  to  hold  the  property.  Upon  the  proof  taken 
in  thecausethe  Chancellor  was  of  opinion,  that  Gowan  did  con- 
sent to  SumwaWs  being  substituted  in  his  stead,  as  the  purchaser, 
and  passed  an  order  for  an  injunction  commanding  him  to  deliv- 
er possession;  from  which  order  the  case  is  brought  by  appeal 
before  this  court.  It  is  the  common  practice  where  a  purchaser 
under  a  decree  in  Chancery  is  kept  out  of  possession  by  the  for- 
mer owner,  for  the  Chancellor  to  interpose  the  authority  of  that 
court,  and  cause  the  possession  to  be  delivered  up.  But  that 
does  not  seem  to  us  to  be  the  character  of  this  case.  It  is  the 
case  of  one,  who  not  being  the  purchaser  himself,  seeks  to  ob- 
tain the  possession  of  the  premises,  by  proceedings  against  him 
who  was  in  fact  the  purchaser.  How  far  this  would  be  a  fit 
case  for  this  summary  mode  of  proceeding,  if  it  could  be  shown 
that  Gowan  did  agree  to  permit/  Sumwalt  to  be  substituted  as 
the  purchaser  is  not  a  question  before  us;  there  being  nothing 
in  the  evidence  in  our  opinion  to  establish  that  fact.  The  proof 
by  Mr.  Moak  (one  of  the  trustees)  who  prepared  the  deed 
is,  that  Gowan  consented  that  the  property  should  be  convey- 
ed by  the  trustees  to  Sumwalt,  but  insisted  on  being  permitted 
to  redeem  it,  by  paying  the  amount  of  the  judgments,  and  that 
Sumwalt  agreed  to  allow  him  sixty  days,  and  promised  to  re- 
convey  him  the  property  if  he  paid  him  the  money,  at  the  ex- 
piration of  that  time.  That  Gowan  repeatedly  said  Sumwalt 
VOL.  I.— 65. 


514          CASES  IN  THE  COURT  OF  APPEALS 


Qowan  vs.  Sumwalt — 1829. 


u  as  ungenerous  ;  that  sixty  days  was  not  enough,  and  that  he 
ought  to  allow  him  a  longer  time,     Mr.  Harris  one  of  the  Jus- 
tices who  took  the  acknowledgment,  proves  that  there  was 
somr  hesitation  on  the  part  of  Gowan  about  signing  the  deed, 
the  particulars  of  which  he  docs  not  recollect,  but  that  he  final- 
ly signed  it,  with  the  understanding,  that  it  was  not  to  go  out 
of  the  possession  of  Mr.  Israel.     Another  witness  swears  that 
Sumwalt  told  him  he  never  wanted  the  property  for  his  own  use, 
and  was  willing  to  give  the  time  craved  by  Gowan  for  the  pay- 
ment of  the  money,  which  he  said  was  sixty  days.     And  Mr. 
Israel,  the  other  magistrate  who  took  the  acknowledgment, 
proves  that  when  the  deed  was  presented  to  Gowan  for  signa- 
ture, he  hesitated  about  signing  it,  saying  there  was  an  under- 
standing between  himself  and  Sumwalt  relative  to  the  property 
which  ought  to  be  reduced  to  writing,  and  stated  in  the  presence 
of  Sumwalt,  something  not  recollected  by  the  witness,  about  a 
right  to  be  reserved  to  him  to  have  a  reconveyance  of  the  pro- 
perty, on  his  paying  the  purchase  money,  to  which  Sumwalt 
assented.     That  he  "the  witness  then  proposed,  that  the  deed 
should  be  executed,  and  left  with  him,  until  matters  were  satis- 
factorily arranged,  to  which   Gowan  agreed.     That  the  deed 
was  accordingly  executed  and  left  with  him.     That  Sumwalt 
called  for  it  once  or  twice  in  the  course  of  a  day  or  two  after- 
wards, and  that  he  refused  to  deliver  it  to  him;  but  finally  de- 
livered it  to  Mr.  Moal-e,  who  said  he  would  see  the  matter  ar- 
ranged between  the  parties.      There  does  not  appear  to  us  to 
be  any  thing  in  the  whole  of  this  testimony,  tending  to  prove 
that  Gowan  ever  agreed  or  intended  that  Sumwalt  should  be 
substituted  in  his  room  as  the  purchaser,  or  that  it  was  so  under- 
stood by  Sumwalt  himself,  and  all  the  evidence  shows  that  the 
deed  was  not  delivered  by  Gowan  to  Sumwalt  as  his  deed,  but 
was  left  with  Israel,  as  an  escrow,  to  be  delivered  on  a  condi- 
tion that  does  not  appear  to  have  been  ever  performed.     It  is 
not  therefore,  and  cannot  be  taken  as  the  deed  of  Gowan,  and 
consequently  is  no  evidence  of  any  assent  on  the  part  of  Gow- 
an to  Sumwalt  being  taken  as  the  purchaser.     And  all  that  can 
be  collected  from  the  parol  evidence  is,  the  intention  of  the  par- 


OF  MARYLAND.  515 


Gowan  vs.  Sumwalt — 1829. 


ties,  that  the  property  should  be  conveyed  to  Sumwalt)  as  a 
pledge  only  to  secure  the  repayment  of  the  purchase  money,  and 
not  that  he  should  be  substituted,  as  the  purchaser,  which  inten- 
tion was  never  carried  into  effect.  And  if  it  was ;  if  a  mortgage 
had  been  regularly  executed,  and  delivered,  the  proceedings  in 
chancery  on  the  failure,  by  Gowan  to  repay  the  amount  of  the 
purchase  money,  should  have  been  of  a  different  character. 

DECREE   REVERSED. 


INDEX. 


ACCRETION. 
See  Ejectment  2,  3. 

ACTION— RIGHT  OF. 
1.  When  a  bill  of  exchange  is  en- 
dorsed in  full,  all  the  legal  interest 
is  transferred  to  the  endorsee,  and 
having  the  legal  interest,  he  alone 
is  qualified  to  maintain  an  action  on 
such  bill.  He  cannot  use  the  name 
of  the  payee  ;  because  the  payee 
having  transferred  his  interest,  can 
have  no  competency  to  maintain 
an  action.  Bowie  use  Ladd  vs. 
Duvall,  --------  175 

2.  But  if  a  note  or  bill  endorsed  in 
full,  should  in  the  regular  course 
of  commercial  dealing,  come  back 
to  the  hands  of  a  prior  endorser,  or 
of  the  payee,  it  would  be  competent 
for  such  person  as  the  holder,  to 
strike  out  the   endorsement,   and 
sue  in  his  own  name,    -    -    -     Ib. 

3.  The  value  of  property  delivered 
by  an  administrator  to  a  distribu- 
tee, as  payment  of  his  portion  of  a 
deceased's  estate,   cannot  be  re- 
covered back  in  a  court  of  law,  in 
consequence  of  such  administrator 
being  afterwards  compelled  by  a 
recovery  at  law,  to  pay  a  debt  due 
by  the  deceased,  of  which  he  was 
not  aware  when  he  distributed  the 
estate  ;  or  his  having  in  part  paid 
the  debts  of  the  deceased,  out  of 
his  own  private  funds.     The   re- 
medy   for   such    claims    is   in    a 
court  of  Equity.     Turner  vs.  .flnn 
Egerton, 430 

4.  It    is  not  universally  true,  that 
where  one  is  benefitted  by  the  pay- 
ment of  money  by  another,  the  law 
raises  an  assumpsit  against  the  party 
benefit  ted,  in  favour  of  the  party 
paying  the  money.  A  stranger  can- 
not at  his  pleasure  make  me  his 
debtor  whether  I  will  or  not,  by  pay- 


ing a  debt  due  from  me  to  ano- 
ther  /j. 

5.  Where  one  is  compelled  to  pay  the 
debt  of  another,  he  may  recover 
against  him  in  an  action  for  money 
paid,  upon  the  promise  which  the 
law  implies,  as  in  the  case  of  money 
paid  by  a  surety  in  a  bond,  which 
is  considered  as  paid  to  the  use  of 
the  principal ;  and  may  be  recover- 
ed in  an   action  against  him   for 
money  paid,  -    -     .     -    -    -    Ib. 

6.  An  action  at  law  cannot  be  main- 
tained to  recover  back  a  payment 
in  money,  made  by  an  administra- 
tor to  the  guardian  of  a  distributee 
of  his  intestate.     The  remedy  is  in 
Equity.     Turner  vs.  Egerton,  -  434 

7.  The  bond  of  a  trustee  appointed 
by  the  Chancellor  to  sell  the  real 
estate  of  a  deceased  person,  for  the 
payment  of  his  debts,  is  not  liable 
to  be  put  in  suit,  after  the  trustee 
has  sold  the  deceased's  property, 
and  received  the  money  therefor, 
upon  the  order  of  the  Chancellor 
distributing  such  proceeds  among 
the  creditors,  without  notice  to  the 
trustee  of  such  distribution.    State 

/  use  of  Oyster  vs.  Jinnan,  -  -  450 
'8.  No  person  can  by  a  voluntary  pay- 
ment of  the  debt  of  another,  with- 
out his  authority,  make  himself  a 
creditor  of  the  person  whose  debt  is 
thus  paid.  Mayor  and  City  Coun- 
cil of  Baltimore  vs.  Hughes,  -  480 

9.  If  one  is  compelled,or  in  a  situation 
to  be  compelled  to  pay  the  debt  of 
another,  as  in  the  case  of  a  surety, 
and  does  pay  it,  the  law  implies  a 
promise  on  the  part  of  him  for 
whom  the  money  is  paid,  on  which 
an  action  may  be  sustained;  for  in 
such  case,  it  is  not  a  voluntary,  but 
a  compulsory  payment,  -  -  Ib. 

See  Insolvent  Debtors. 

—  Asaumpsit,  2,  3,  4. 


518 


INDEX. 


ACTS  OF  ASSEMBLY. 

1.  In  the  construction  of  the  statute  of 
di-tributions,  it  has  b.cn  held,  that 
although  the  creditors  of  the  de- 
ceased, are  the  first  and  special  ob- 
jects of  its  regard  :  yet  that  the 
next  of  kin,  among  whom  the  sur- 
plus is  to  be  distributed,  take  an 
interest  which  vests  in  them  imme- 
diately, in  the  nature  of  a  present 
debt  of  an  unascertained  amount, 
payable  at  a  future  day  ;  and  it  is 
clear,  they  can  only  obtain  posses- 
sion of  their    distributive  shares, 
through  and  from  the  administra- 
tor.    PER   BLAND,  CII'R.  Hagthorp 
vs.   Hooke, 270 

2.  The  acts  of  Assembly  of   1715, 
ch.  47,  and  1766,  ch.   14,  being  in 
pari  materia,  must  be  construed  to- 
gether as  one  system.     The  first 
having  embraced  incorporeal  tene- 
ments, and  hereditaments,  there  is 
no  reason  why  they  should  be  ex- 
cluded from  the  second.     The  act 
of  1766,  cannot  be  confined  to  con- 
veyances only  by  which  the  land 
itself  passes,  for  the   design  was, 
that  all  rights,   incumbrances,  or 
conveyances,    touching,  connected 
with,   or  in   any  wise  concerning 
land,  should  appear  upon  the  public 
records.  Hays  vs.  Richardson,  -  366 

3.  If  contradictions  or  incongruities 
exist  between  the  preamble  and  en- 
acting clause  of  a  statute,  the  latter 
shall  prevail,  ------  16. 

4.  A     cotemporaneous,     unvarying 
construction  of  an  act  of  Assembly, 
for  sixty  years,  ought  not  to  be  dis- 
regarded but  upon  the  most  imperi- 
ous and  conclusive  grounds,   -    76. 

Act  of  1745,  ch.  9.  sect.  10,  (Improv- 
ers on  the  water,)  -  -  -  -  249 

Act  of  1783,  ch.  24,  (Port  wardens' 
grants,)  -------  76. 

Act  of  1785,  ch.  46,  sect.  7,  (Set 
off,)  - 440 

Act  of  1795,  ch.  54,  (Charter  of  the 
City  of  Baltimore,)  -  -  -  -  480 

Act  of  179G,  ch.  68,  (Supplement  to 
the  Charter  of  the  City  of  Balti- 
more,)   499 

Act  of  1805,  ch.  110,  (Insolvent  Debt- 
ors,)   231 

Act  of  1823,  ch.  95,  sect.  3,  (Alimony, 
grant  of  adjudged  void,)  -  -  463 

Act  of  1825,  ch.  123,  (Writs  of  pos- 
session, to  purchasers  at  Sheriff's 
Sales,) '  -  443 


AGENT. 

See  Shipping,  1  to  7. 

AGREEMENT. 
See  Court  of  Chancery,  30,  31,  32, 33. 

—  Damages,  2,  3. 

—  Shipping,  2,  3,  7,  9. 

ALIMONY. 

The  suit  for  alimony  in  this  State  is 
a  distinct  remedy  from  the  pro- 
ceedings to  obtain  a  ^divorce,  and 
for  a  series  of  years  the  wifes' 
maintenance  has  been  recoverable 
through  the  intervention  of  our  ju- 
dicial tribunals.  Crane  vs.  Megin- 
nis, •-..  463 

ALLUVION. 

See  Ejectment,  2,   3. 

AMENDMENT. 
See  Execution,  2. 

ANSWER  IN  CHANCERY. 

See  Court  of  Chancery,  12,    13,    14, 
16,  18,  26,  42,  43. 

APPEAL. 

1.  After  an  injuntion  had  been  grant- 
ed, prohibiting  the  defendant  from 
obstructing  a  public  road,  the  Com- 
missioners of  Baltimore  County  au- 
thorised thesame  road  to  be  shut  up. 
The  defendant,  who  was  the  own- 
er of  the  land  over  which  the  road 
passed,  without  moving,  or  waiting 
for  a  dissolution  of  the  injunction, 
shut  it  up.  The  Chancellor  excu- 
sed this  violation  of  the  injunction, 
upon  the  ground,  that  the  defendant 
had  misapprehended  his  rights  ;  but 
ordered  him  to  place  the  road  in 
its  former  condition  ;  this  not  be- 
ing done,  the  defendant  was  brought 
before  the  Chancellor  by  attach- 
ment. The  injunction  was  then 
ordered  to  be  continued,  until  final 
hearing  or  further  order  ;  and  the 
defendant  to  remove  the  obstruc- 
tions, and  for  his  contempt  in  not 
removing  them  since  the  previous 
order,  was  fined.  From  these  pro- 
ceedings the  defendant  appealed. 
Upon  a  motion  to  dismiss  the  ap- 
peal, it  was  held,  that  the  order  of 
the  commissioners,  directing  and 
authorising  the  old  road  to  be  shut 
up,  placed  the  premises  over  which 
it  formerly  run,  under  the  control 
of  the  defendant  j  and  gave  him  the 


INDEX. 


519 


same  right  of  user  of  the  land  of 
that  road,  that  he  had  of  the  rest  of 
his  estate  ;  and  that  the  subsequent 
orders  of  the  Court  of  Chancery, 
so   affected   his   rights  and   inter- 
ests therein,  as  to  form  a  fit  sub- 
ject of  appeal.    Williamson  vs.  Car- 
nan,     --------     184 

2.    In  a  cause  which  had   been  set 
down  for  hearing,  the  Chancellor, 
after  argument   of  counsel,   pro- 
ceeded to  discuss  many  rules  and 
principles  of  equity,   and  a  great 
variety  of  facts,  as  applicable  to 
the  subject   under   consideration  ; 
and    announced   his    intention    at 
some  future  day  to  decree  accord- 
ingly.    To  enable  him  to  do  so,  he 
referred  the  cause  to  the  auditor, 
to  state  an  account   in  conformity 
to  his  views,  from  the  proceedings 
and  proofs  then  in  the  cause  ;  or 
from  such  other  proofs  as  might  be 
adduced  by  the  parties,  which  they 
were  respectively  authorised  to  in- 
troduce, upon  notice,  before  a  giv- 
en day.     In  this  state  of  the  cause, 
an  appeal  was  taken  ;  and  upon  a 
motion  to  dismiss  it,  HELD,  that  the 
order  in  question  did  not  so  settle, 
or  materially  affect,  all,  or  any  of 
the  rights  or  interests  in  controver- 
sy, as  to  make  it  a  decretal  order, 
from  which  an  appeal  would  lie  ; 
that  it 'was  a  mere  preparative  to 
the  decision  of  the  cause,  and  not 
decretals  and  that  it  was  only  from 
what  the   Chancellor   had    done, 
that  is,  adjudged  or  decreed,  and 
not  from  what  he  intends  to  do, 
that   an  appeal  would  lie.     Hag- 
thorp  vs.  Hook,   -----    270 

3.    T  died  in  a  foreign  country,  leav- 
ing  his   partner    K   his   executor 
there  ;   who,   upon  his  return   to  / 
Maryland,  renounced  all   right   to/ 
administer  upon   T's  estate  here/ 
Letters     of    administration    were 
then  granted  to  the  complainant, 
who  filed  a  bill  against  K  and  D, 


pleaded  in  bar  :  "  That  he  finally 
settled  and  adjusted  with  K,  execu- 
tor of  T,deceased,  after  the  death  of 
the  said  T,  an  account  in  writing  ; 
and  by  said  account,  the  balance 
due  to  the  defendant  by  the  estate 
of  the  said  T  on  the  25th  Oct.  1823, 
was  admitted  to  be,  &c.  which  ac- 
count is  just  and  true."  The  com- 
plainant demurred.  The  Chancel- 
lor over-ruled  the  plea,  and  ordered 
the  defendant  to  answer  over. 
HELD,  that  an  appeal  did  not  lie 
from  this  order,  which  decided  a 
mere  question  of  pleading,  and  set- 
tled no  right  between  the  parties, 
and  that  this  plea  was  void  for 
uncertainty.  Danels  vs.  Taggarfs 
Jldm'r,  -  -  -  .  -  -  -  -  311 

ASSUMPSIT." 

1.  The  action  for  money  paid,  laid 
out,  and  expended,  must  be  found- 
ed upon  a  contract  express  or  im- 
plied.    Mayor  and  City  Council  of 
Baltimore  vs.  Hughes,    -    -    -     480 

2.  A   tax    imposed  by  a  municipal 


corporation,  cannot  be  recovered 
on  a  count  for  money  paid,  laid  out, 
and  expended  ;  although  such  cor- 
poration has  paid  the  cost  of  the 
improvement,  for  which  the  tax 
was  created,  -----  Jfo. 

3.  Nor  can  the  cost  of  such  an  im- 
provement, or  any  part  thereof,  be 
recovered  from  a  defendant  liable 
to  pay  tax  therefor,  on  a  count  for 
work  and  labor,  where  the  ordi- 
nance under  which  the  work  was 
done  has  not  been  properly  pursu- 
ed, so  as  to  create  a  legal  liability 
in  the  defendant,      •     -     -    -     Ib. 

4.  The  imposition  and  assessment,  of 
/    a  tax  by  the  Mayor  and  C  ity  Council 

of  Baltimore,  under  and  in  pursu- 
ance of  their  charter,  creates  a  le- 
gal obligation  to  pay  such  tax,  on 
which  the  law  raises  an  implied 
assumpsit  by  the  person  taxed.  Du- 
gan  vs.  The  Mayor  and  City  Council 
of  Baltimyre, 499 


requiring   an  account  and   settle- 
ment of  various   claims;  some  of 

which  related  exclusively  to  tfins-    See  Moncy  had  and  ™ccived,  1. 
actions  of  a  partnership  which  had    —  Nudum  Pactum,  1. 
subsisted  between  K,  D,  and  T  ;    —  Shipping,  9. 
others,  to  demands  of  the  intestate 
against  both  of  his  surviving  part- 
ners; and  others,  to  misapplications 
of  the  intestate's  property,  by  both 
and  each  of  them  after  T's  death. 
The   dates   of   these   transactions 
were  not  alleged.     To  this  bill,  D 


BALTIMORE— CITY  OF. 

See  Mayor  and  City  Council  of  Balti- 
more. 

BILLS  OF  EXCHANGE. 
See  Promissory  Note,  3,  5. 


120 


INDEX. 


BILL  OF  RIGHTS. 

See  Constitutional  Law. 

BOND. 

1.  Obligations  in  which   many  per- 
sons are  interested,  may  be  taken 
in  the  name  of  the  State,  whenever 
the  law  is  silent  in  naming  the  obli- 
gees  to   whom    they    are    to   be 
given.     Kitrsted,  Sfc.  vs.   The  State 
use,  Sfc.     -------    231 

2.  The  bond  of  a  Trustee  appointed 
by  the  Chancellor,  to  sell  the  real 
estate  of  a  deceased  person  for  the 
payment   of  his  debts,  is  not  lia- 
ble to  be  put  in  suit,  after  the  Trus- 
tee has  sold  the  deceased's  proper- 
ty and  received  the  money  therefor, 
upon  the  order  of  the  Chancellor, 
distributing  such  proceeds  among 
the  creditors,  without  notice  of  such 
distribution.     State  use  of  Oyster  vs. 
Jlnnan,     -------     450 

BRITISH  DECISIONS. 

1.   English  decisions  made  since  the 

revolution,  have  no   authoritative 

force  here.     Bowie  use    Ladd    vs. 

Duvall, 175 

BRITISH  STATUTES. 
Statutes  3  and  4  Anne,  ch.  9,  for  effect 
of,  see  promissory  note,  1,  2. 

CAUSE  OF  ACTION. 
See  Action — right  of. 

CERTIORARI. 

See  Inferior  Jurisdiction,  1, 2,  3, 4,  5. 

CHANCERY. 

See  Court  of  Chancery. 

CHARTER  PARTY. 

See  Shipping,  7,  8,  9,  10. 

COLLECTOR  OF  TAXES. 
See  Mayor  and  City  Council  of  Bal- 
timore, 10. 

COMMISSIONERS  OF  BALTIMORE 
COUNTY. 

See  Court  of  Chancery,  1. 

COMPULSORY  PAYMENTS. 

See  Action,  right  of,  3,  5,  8,  9. 

CONSIGNEE. 
See  Shipping,  5,  6,  7. 


CONSTITUTIONAL  LAW. 

1.  The  constitution  of  this    State, 
composed  of    the    declaration   of 
rights  and  form  of  government,   is 
the  immediate  work  of  the  people 
in  their  sovereign   capacity  ;   and 
contains  standing  evidences  of  thei 
permanent   will.     It   portions  out 
supreme  power,  and  assigns  it  to 
different  departments  ;  prescribing 
to  each  the  authority  it  may  exer 
cise,  and  specifying,  that  from  the 
exercise  of  which  it  must  abstain. 
Crane  vs.  Meginnis,     -     -    -      4  63 

2.  The  public   functionaries  move 
in    a  subordinate    character,    and 
must  conform  to  the  fundamental 
laws  or  prescripts  of  the  creating 
power.     When  they  transcend  de- 
fined limits,  their  acts  are  unautho- 
rised, and  being  without  warrant, 
are  necessarily  to  be  viewed  as  nul- 
lities,   --------     Ib. 

3.  The    legislative    department    is 
nearest  to  the   source   of  power, 
and  is  manifestly  the  predominant 
branch  of  the  government.     Its  au- 
thority is  extensive  and   complex, 
and  being  less  susceptible  on  that 
account  of  limitation,  is  more  lia- 
ble to  be  exceeded  in  practice,  -  Ib. 

4.  Its  acts  out  of  the  limit  of  authori- 
ty assuming  the  garb  of  law,  will  be 
pronounced  nullities  by  the  Courts 
of  Justice  ;  it  being  their  province 
to  decide  upon  the  law  arising  in 
questions  judicially^  before   them. 
and  uptiii   the  constitution  as  the 
paramount  law, /&. 

5.  The  check  to  legislative  encroach- 
ments is  to  be  found  in  the  declara- 
tion, that  the  legislative,  executive 
and  judicial  powers,  ought  to  be 
kept  separate  and  distinct;  and  the 
solemn  obligations  of  fidelity  to  the 
constitution  under  which  all  legis- 
lative functions  are  performed,  -  Ib. 

6.  Divorces  in  this  State  from  the 
earliest  times,  have  emanated  from 
the    General  Assembly  ;  and  can 
now  be  viewed  in  no  other  light, 
than  as  regular  exertions  of  legis- 
lative power,  ------    Jl. 

7.  The  3d  section  of  the  act  of  1823, 
ch.  95,  by  which  the  legislature  re- 
quired a  husband  to  pay  a  trustee 
for  the  use  and  benefit  of  his  wife, 
from  whom  such  act  divorced  him, 
a  sum  certain  annually,  is  an  exer- 
cise of  judicial  authority,  repugnant 


INDEX. 


521 


to  the  constitution  of  Maryland,  and 
void,     --------     ib. 

CONSTRUCTION. 

1.  Obligations  in  which  many  per- 
sons are  interested,  may  be  taken 
in  the  name  of  the  State,  whenever 
the  law  is  silent  in  naming  the 
obligees,  to  whom  they  are  to  be 
given.     Kiersted,  &fc.  vs.  The  State 
use,  Sfc. 231 

2.  A  consistent  and  uniform  practice 
under  various  acts   of  Assembly, 
'passed  in  relation  to  the  same  sub- 
ject, so   fully  establishes  the  con- 
temporaneous construction  of  the 
first  act  in  the  system,  that  after 
twenty  years,  it  has  too  long  obtain- 
ed, to  be  shaken  and  disturbed,  -  76. 

3.  So  bonds  with  condition   for  the 
appearance    of  insolvent  debtors, 
made  to  the  State  as  obligee,  are 
sanctioned  by  the    uniform  prac- 
tice of  twenty  years,  although  the 
acts  of  Assembly,  under  which  they 
are  required  to  be  executed, contain, 
no  specific  provision   for  making 
them  to  the  State,    and  creditors 
may  bring  suits  on  them,  for  their 
use,  though  not  expressly  authori- 
sed by  law  to  sue,    -    -    -    -    Ib. 

4.  Where  an  agreement  contains  pro- 
visions, which  by  reason  of  some 
technical  principle  of  law,  cannot  be 
carried  into  effect,  according  to  its 
literal  import,  it  is  the  duty  of  a 
Court  of  Equity  for  the  sake  of  the 
intent,  to  give  it  that  construction 
which  the  rules  of  law  will  tolerate, 
and  the  intention  of  the  parties,  to 
be  collected  from  the  whole  instru- 
ment, will  justify.     Coale,  et  ux.  vs. 
Barney,  et  ux. 324 

5.  The  rule  that  a  Court  of  Equity 
will  sometimes  adopt  a  more  liberal 
and  enlarged  construction  than  pre- 
vails at  law,  can  never  be  tolerated, 
unless  it  be  necessary  to  effectuate 
the  motives  which  induced  a  con- 
tract.    Union  Bank  of  Maryland  us. 
Edwards,    -------    346 

6.  For  the  principles  which  govern 
those  cases,  in  which  the  owner  of  a 
ship  and  cargo,  exercises  his  right  of 
breaking  up  or  changing  his  ship's 
voyage  ;  and  by  which  the  effect  of 
the  action  of  that  right  upon  the 
contract  of  the  ship-master  or  su- 
percargo, is  to  be  determined.   See 
Shipping,  1,  2,  3. 

7.  For  an  instance  of  several  agree- 
ments upon  the  subject  of  freight, 

66 


construed  in  connexion  with  each 
other,  and  with  reference  to  the  po- 
litical regulations  of  the  country 
to  which  goods  were  to  be  carried. 
See  Shipping,  7. 

See  Act  of  Assembly,  British  Sta- 
tutes. 

CORPORATION. 

A  corporation  must  act  within  the 
limits  of  its  delegated  authority, 
and  cannot  go  beyond  it ;  yet  it 
ought  not  by  construction  be  made 
to  mean  that  which  is  not  clearly 
expressed  ;  but  when  its  ordinan- 
ces will  admit  of  two  constructions, 
they  should  receive  that  which  is 
consistent  with  the  power  given, 
and  not  that  which  is  in  violation  of 
it.  Mayor  and  City  Council  of 
Baltimore  vs.  Hughes,  -  -  -  480 

COUNTY  COURT. 

The  County  Court  have  no  power  to 

review  the  judgment  of  the  Levy 

Court,  upon  the  question,  whether 

the  public  convenience  requires  an 

alteration  in  a  public  road.    PER 

ARCHER,  J.    Williamson  vs.  Carnan. 

195 

COURT  OF  CHANCERY. 

1.  After  an  injuntion  had  been  grant- 
ed, prohibiting  the  defendant  from 
obstructing  a  public  road,  the  Com- 
missioners of  Baltimore  County  au- 
thorised the  same  road  to  be  shut  up. 
The  defendant,  who  was  the  own- 
er of  the  land  over  which  the  road 
passed,  without  moving,  or  waiting 
for  a  dissolution  of  the  injunction, 
shut  it  up.  The  Chancellor  excu- 
sed this  violation  of  the  injunction, 
upon  the  ground,  that  the  defendant 
bad  misapprehended  his  rights  ;  but 
ordered  him  to  place  the  road  in 
its  former  condition  ;  this  not  be- 
ing done,  the  defendant  was  brought 
before  the  Chancellor  by  attach- 
ment. The  injunction  was  then 
ordered  to  be  continued,  until  final 
hearing  or  further  order  ;  and  the 
defendant  to  remove  the  obstruc- 
tions, and  for  his  contempt  in  not 
removing  them  since  the  previous 
order,  was  fined.  From  those  pro- 
ceedings the  defendant  appealed. 
Upon  a  motion  to  dismiss  the  ap- 
peal, it  was  held,  that  the  order  of 
the  commissioners,  directing  and 
authorising  the  old  road  to  be  shut 
up,  placed  the  premises  over  which 


5-2-2 


INDEX. 


it  formerly  run,  under  the  control 
of  i he  defendant ;  and  gave  him  tin- 
same  right  of  user  of  the  land  of 
that  road,  that  he  had  of  the  rest  of 
his  estate  ;  and  that  the  subsequent 
orders  of  the  Court  of  Chancery, 
so  affected  his  rights  and  inter- 
ests therein,  as  to  form  a  fit  sub- 
ject of  appeal.  Williamson  vs.  Cm-- 
nan,   184 

2.  Where  the  Chancellor  entertains 
a   doubt   as    to  the    propriety  of 
granting  an  injunction  at  all,   or 
where,  when  granted,  it  operates 
in  restraint  of  public  commissioners 
for  the  opening  a  road,  street,  or 
the  like;  or  it  altogether  stops,  re- 
tards, or  embarrasses  the  operation 
of  a  large  manufacturing  establish- 
ment, or  restrains  a  public  ferry, 
in  these  and  some  other  cases  of  a 
very  peculiar  nature,  it  has  been 
the  practice  in  the  first  instance,  or 
on  application,  to  appoint  a  very 
early  day  for  the  hearing  of  the 
motion  of  a  dissolution  of  the  in- 
junction, and  that  too,  either  with 
or  without  answer.     PER  BLAND, 
CHAN'R,     ---...-  184 

3.  But  where  upon  a  defendant's  own 
shewing,  the  injunction  operates  in 
restraint  of  a  right,  which  he  has 
but  recently  acquired,  or  has  not 
long  decidedly  and  exclusively  en- 
joyed, and  there  is  nothing  pecu- 
liar in  the  case,  so  as  to  require  a 
departure  from  the  general  rule,  it 
must,  as  in  other  cases  where  indi- 
viduals only  are  restrained,  take 
the  course  of  the  court,   IB.  -    Ib. 

4.  Whether  an  inferior  tribunal  with 
jurisdiction  over  a  given  subject, 
has  proceeded  to  exercise  it  upon 
such  subject  correctly,  or  errone- 
ously, or  has  in  any  respect  neglec- 
ted, or  disregarded,  its  prescribed 
modes   and  forms,  is  not  for  the 
Chancellor  to  determine,  where  he 
has  no  revising  or  superintending 
authority  over  it,    IB.  -    -    -    Ib. 

5.  Chancery   will  restrain  a  party 
from  doing  an  act  injurious  to  an 
individual,  or  which  may  be  preju- 
dicial as  a  public  nuisance,  pend- 
ing any  judicial  proceedings  before 
those  tribunals,  by  which  the  au- 
thority to  do  the  act,  or  its  lawful- 
ness is  to  be  determined,    IB.  -  Ib. 

G.  Where  the  facts  charged  in  a  bill 
were  all  admitted  to  be  true  by  the 
pleadings,  and  there  was  no  repli- 
cation, but  the  parties  agreed  that 


the  Chancellor  might  take  the  pa- 
pers and  decide  the  cause;  by  such 
agreement  the  cause  is  set  down 
for  hearing,  and  whether  the  pro- 
ceedinp  of  the  defendant  be  re- 
garded as  a  plea,  or  as  an  answer, 
the  question  submitted,  is  on  their 
legal  sufficiency  to  bar  the  plain- 
tiffs claim.  Tiernan  vs.  Poor,  et 
MX.  et  al.  -------  216 

7.  When  an  instrument  of  writing  is 
designed  to  operate  as  a  transfer  of 
property,  and  proper  and  apt  terms 
are  used,  whereby  the  meaning  of 
the    parties  can  be  clearly  ascer- 
tained, if  some  circumstances  are 
omitted  to  give  it  legal  validity, 
which  deprive  it  of  its  intended, 
specific  operation,  a  Court  of  Equi- 
ty will  set  it  up  as  a  contract,  or 
as   evidence  of   a    contract;  and 
when  the  rights  of  innocent  third 
parties  would  not  thereby  be  affec- 
ted, will,  as  between  the  parties  to 
such  instrument,  carry  it  into  spe- 
cific execution ;  provided  it  be  foun- 
ded  upon   a  valuable   considera- 
tion, ---------/ft. 

8.  P  and  bis  wife,  in  consideration 
that  T  would  give  up  a  lien  which 
he  held  upon  P's  personal  property, 
agreed  to  execute  a  mortgage   of 
certain  real  property,  which,  by  a 
post-nuptial  settlement,  had  been 
conveyed  to  trustees  for  the  sole 
use  of  the  wife,  with  power  to  her 
to  "sell,  convey  and  dispose  of  the 
same,  absolutely  in  such  manner 
as  she  might  think  proper  to  di- 
rect, without  the  concurrence  of 
her  husband,  and  from  and  after 
her  decease,  such  parts  of  the  pro- 
perty as  should  be  left  undisposed 
of,  by  her  deed  or  contract,"  was 
conveyed  in  trust  to  her  children. 
In  pursuance  of  such  agreement,  T 
gave  up  his  lien,  and  P  and  his 
wife   executed  a  deed  to   T,   for 
some  of  the  trust  property.     The 
deed  was  in  the  usual  form  of  a 
mortgage,  except  that  the  wife  was 
not  examined  apart  from  her  hus- 
band, by  the  justice  of  the  peace 
who  took  her  acknowledgment,  and 
according  to  the  Acts  of  Assembly 
passed  in  relation  to  deeds  execu- 
ted by  femes  covert  grantors.    Upon 
a  bill  filed  by  T,  praying  a  sale  of 
the  mortgaged  premises,  the  court 
held,  that  whether  the  instrument 
of  writing  which  forms  the  basis  of 
this  call,  for  the  interposition  of  a 


INDEX. 


523 


Court  of  Equity,  be  in  fact  a  mort- 
gage, in  its  legal  and  technical 
sense,  in  consequence  of  its  not  hav- 
ing been  acknowledged  in  the  man- 
ner which  the  acts  of  Assembly  re- 
quire, it  was  not  necessary  to  de- 
termine; but  it  was  clearly  intend- 
ed to  be  a  mortgage,  and  within  the 
limits  of  the  wife's  disposing  pow- 
er; and  therefore  decreed  the  pro- 
perty mentioned  therein  to  be 
sold,  ---------16. 

9.  The  title  to  the  assistance  of  a 
court  must  be  exposed  by  the  plead- 
ings; but  the  style  and  character 
of  pleading  in  equity,  has  always 
been  of  a  more  liberal  cast  than 
that  of  other  courts;  as  misplead- 
ing in  matter  of  form  there,  has 
never  been  held  to  prejudice  a  par- 
ty, provided  the  case  made  is  right 
in  substance,  and  supported  by  pro- 
per evidence,   ------  76. 

10.  In  a  cause  which  had  been  set 
down  for  hearing,  the  Chancellor, 
after  argument   of  counsel,   pro- 
ceeded to  discuss  many  rules  and 
principles  of  equity,   and  a  great 
variety  of  facts,  as  applicable  to 
the  subject   under   consideration  ; 
and   announced  his    intention    at 
some  future  day  to  decree  accord- 
ingly.    To  enable  him  to  do  so,  he 
referred  the  cause  to  the  auditor, 
to  state  an  account  in  conformity 
to  his  views,  from  the  proceedings 
and  proofs  then  in  the  cause ;  or 
from  such  other  proofs  as  might  be 
adduced  by  the  parties,  which  they 
were  respectively  authorised  to  in- 
troduce, upon  notice,  before  a  giv- 
en day.     In  this  state  of  the  cause, 
an  appeal  was  taken  ;  and  upon  a 
motion  to  dismiss  it,  HELD,  that  the 
order  in  question  did  not  so  settle, 
or  materially  affect,  all,  or  any  of 
the  rights  or  interests  in  controver- 
sy, as  to  make  it  a  decretal  order, 
from  which  an  appeal  would  lie ; 
that  it  was  a  mere  preparative  to 
the  decision  of  the  cause,  and  not 
decretal;  and  that  it  was  only  from 
what   the   Chancellor   had    done, 
that  is,  adjudged  or  decreed,  and 
not  from  what  he  intends  to  do, 
that  an   appeal  would  lie.     Hag- 
thorp  vs.  Hook, 270 

11.  A,  by   deed,  conveyed    certain 
real  and  personal  chattels  to  I,  up- 
on the  proviso,  that  if  I,  his  execu- 
tors, &,c.  should  absolutely  omit, 
neglect  and  refuse  to  pay  certain 


creditors  of  A,  recited  in  the  deed, 
their  just  demands,  then  the  deed 
should  be  void.  This  property  came 
to  the  hands  of  I,  and  after  his 
death,  passed  to  his  administrators 
and  the  other  defendants  claim- 
ing under  him,  and  them.  Upon  a 
bill  filed  by  the  administrator  de 
bonis  non  of  A,  praying  that  the 
property  may  be  accounted  for, 
and  together  with  the  rents  and 
profits  delivered  up,  it  appeared 
that  some  part  of  the  chattels  real 
was  still  in  the  hands  of  I's  repre- 
sentatives, some  claimed  by  those 
who  had  purchased  with  a  refer- 
ence to  the  original  conveyance, 
and  the  residue  by  those  who  offer- 
ed no  proof  of  being  purchasers  for 
value  without  notice.  The  Chan- 
cellor decreed  that  the  deed  would 
be  considered  a  mortgage,  and 
nothing  having  occurred  to  destroy 
its  redeemable  quality — but  one  of 
A's  creditors  having  been  paid,  di- 
rected the  auditor  to  state  an  ac- 
count, in  which  I's  representatives 
must  be  charged  with  the  value  of 
the  whole  of  the  personal  chattels, 
and  interest  thereon,  from  the  date 
of  the  deed  from  A  to  I ;  and  with 
the  rents  and  profits  of  the  real 
chattels  from  the  same  date,  and 
until  the  time  when  they  passed  in- 
to the  hands  of  the  other  defend- 
ants ;  who  were  responsible  during 
the  time  they  respectively  had  pos- 
session. And  that  I's  representa- 
tives would  be  held  liable  for  all 
rents,  and  profits,  which  the  other 
defendants  should  fail,  or  be  una- 
ble to  pay,  giving  them  credit  for 
the  debt  paid.  PER  BLAND,  CHAN- 
CELLOR, --------  Ib. 

12.  When  the  general  replication  is 
I    put  in,  and  the  parties  proceed  to  a 
'    hearing,  all  the  allegations  of  the 

answers  which  are  responsive  to 
the  bill,  shall  be  taken  for  true, 
unless  they  are  disproved  by  two 
witnesses,  or  by  one  witness  with 
pregnant  circumstances,  IB,  -  Ib. 

13.  Every  allegation  of  the  answer, 
which  is  not  directly  responsive  to 
the  bill,  but  sets  forth  matter  in 
avoidance,  or  in  bar  of  the  plantiff 's 
claim,  is  denied  by  the  general  re- 
plication, and  must  be  fully  proved, 
or  it  will  have  no  effect,    IB.  -  16. 

14.  If  a  defendant  submit  to  answer 
at  all,  he  must  answer  fully  and 
particularly  ;  not  merely  limiting 


INDEX. 


his  responses  to  the  interrogatories 
of  the  bill  ;  but  respond  to  the 
whole  and  every  substantial  part  of 
the  plaintiff's  case  :  he  is  not,  how- 
ever, bound  to  go  further,  and  to 
answer  interrogatories  asking  a 
disclosure  of  matter,  no  way  con- 
nected with  or  material  to  the 
case.  IB.  -  -  -  •  -  -  -  Ib. 

15.  In  Equity,  an  executor  or  adminis- 
trator is  considered  as  a  trustee  of 
the  creditors,  legatees,  and  next  of 
kin  of  the  deceased  ;  is  expected 
and  required  to  preserve  the  pro- 
perty of  the  deceased  apart  from 
his   own;    and  if  he  does  so,  the 
court  will  do  every  thing  that  can 
be  done  to  assist  him,     IB.    -     16. 

16.  When  the  answer  in  the  body  of 
it,  purports  to  be  an  answer  to  the 
whole   bill,  but  the  respondent  de- 
clares, that  he  is  entirely  ignorant 
of  the  matters  contained  in  the  bill, 
and   leaves   the  plaintiff  to  make 
out  the  best  case  he  can,  or  uses 
language   to  that  effect;    and  the 
plaintiff  files   the  general  replica- 
tion, all  the  allegations  of  the  bill 
are  thus  denied,  and  put  in  issue  ; 
and  consequently  all  of  them  must 
be  proved  at  the  hearing,    IB.  -  Ib. 

17.  The  rule  in  relation  to  trusts  by 
implication,  or  operation  of  law,  is 
by  no  means  so  large,  as  to  extend 
to  every  mere   voluntary   convey- 
ance,    IB.       ------     Ib. 

18.  Where  the  nature  of  the  trans- 
action charged  in  the  bill,  is  such 
a  one  as  must  have  been  altogeth- 
er within  the  knowledge  of  the  in- 
testate, the  administrator  may  an- 
swer as  he  is  informed  and  verily 
believes,  but  the  answer  of  an  ad- 
ministrator must  always  be  taken, 
as  well   with  a  reference  to    the 
reason  given  for  his  belief,   as  to 
the  nature  of  the  subject  of  which 
he  speaks,     IB.  -    -     -    -    -     Ib. 

19.  A  purchaser  for  a  valuable  con- 
sideration without  notice  will  not 
be  disturbed  in  equity,     IB.    -    Ib. 

20.  A  purchaser  with  a  knowledge 
of  the  trust  becomes  himself  the 
trustee,  and  stands  in  the  place  of 
the  vendor,  under  whom  he  claims, 

IB.     Ib. 

21.  A  purchaser  with  notice,  from 
another  purchaser  without  notice, 
may  protect  himself  by  the  want 
of  notice  in  his  vendor,     IB.    -  Ib. 

22.  When  a  purchaser  cannot  make 
title,  but  by  a  deed  which  leads  him 


to  a  knowledge  of  the  fact;  and 
more  especially,  when  the  deed  by 
virtue  of  which  he  takes,  recites, 
or  directly  refers  to  the  instrument, 
in  which  the  trust  is  declared,  or 
from  which  it  arises,  he  shall  be 
deemed  cognizant  of  the  fact,  and 
a  purchaser  with  notice,  IB.  -  Ib. 

23.  Under  the  head  of  just  allow- 
ances ,  it  has  long  been  the  course 
of  this  court,  to  allow  a  trustee  or 
mortgagee  in  possession,  for  all  ne- 
cessary expenses  incurred  for  the 
defence,  relief,  protection  and  re- 
pairs of  the  estate.     And   when  a 
mortgagee  thinking  himself  abso- 
lutely entitled,  had  expended  con- 
siderable sums  in  repairs  and  last- 
ing improvements,   he   should   be 
allowed  the  value  of  them,  IB.   76. 

24.  The  estimate  of  the   value  of 
such  lasting  improvements,  is  to  be 
taken  as  they  are,  at  the  time  of 
accounting,  or  passing  the  final  de- 
cree;  and  in  charging  rents  and 
profits  the  estimate  must  not  in- 
clude   those    arising    exclusively 
from  such  improvements,  IB.  -  Ib. 

25.  T  died  in  a  foreign  country,  leav- 
ing  his   partner    K   his    executor 
there  ;   who,   upon   his   return   to 
JMarylnnJ,  renounced  all   right   to 
administer  upon   T's  estate  here. 
Letters     of    administration    were 
then  granted  to  the  complainant, 
who  filed  a  bill  against  K  and  D, 
requiring  an  account   and   settle- 
ment of  various  claims;  some  of 
which  related  exclusively  to  trans- 
actions of  a  partnership  which  had 
subsisted  between  K,  D,  and  T  ; 
others,  to  demands  of  the  intestate 
against  both  of  his  surviving  part- 
ners ;  and  others,  to  misapplications 
of  the  intestate's  property,  by  both 
and  each  of  them  after  T's  death. 
The   dates   of   these   transactions 
were  not  alleged.     To  this  bill,  D 
pleaded  in  bar  :   "  That  he  finally 
settled  and  adjusted  with  K,  execu- 
tor of  T,deceased,  after  the  death  of 
the  said  T,  an  account  in  writing  ; 
and  by  said  account,  the  balance 
due  to  the  defendant  by  the  estate 
of  the  said  T  on  the  25th  Oct.  1823, 
was  admitted  to  be,  &c.  which  ac- 
count is  just  and  true."    The  com- 
plainant demurred.     The  Chancel- 
lor over-ruled  the  plea,  and  ordered 
the    defendant    to    answer   over. 
HELD,  that  an  appeal  did  not  lie 
from  this  order,  which  decided  a 


INDEX. 


525 


mere  question  of  pleading,  and  set- 
tled no  right  between  the  parties, 
and  that  this  plea  was  void  for 
uncertainty.  Danels  vs.  Taggarfs 
Adm'r,-  -  -  .  -  -  -  -  311 

26.  The  plea  of  an  account  stated  to 
such   a  bill  as  the   above   cannot 
be  sustained,  unlesss  it  be  suppor- 
ted by  answer,  denying  the  receipt 
of  any  part  of  the  money,  for  which 
the  defendant  is  called  upon  to  ac- 
count,  subsequently  to  the    time 
when  the  account  stated,  was  ad- 
justed.     ------     -    Jb. 

27.  By  taking  issue  on    a  plea  in 
equity,  the  plaintiff  admits  its  suf- 
ficiency as  a  bar,  if  the  facts  which 
it  asserts  are  established  by  proof; 
and  if  on  such  an  issue,  the  matter 
of  the  plea  is  proved,  the  bar  is 
complete,  and  the  bill  must  be  dis- 
missed.    ---     ---     -ft. 

28.  Upon  a  merely  equitable  estate, 
no  writ  of  partition  can  be  main- 
tained at  law.     Coale,  tt  wx.  vs.  Bar- 
ney, et  war.      ------    324 

29.  A  failure  to  comply  with  an  en- 
gagement to  do  a  mere  nugatory 
act,  ought  not  to  impair  the  rights 
of  a  complainant  in  equity  to  re- 
lief, when  the  facts  of  his  case, 
otherwise   concur,   to  sustain  his 

bin. n. 

30.  An  agreement  was  entered  into, 
on  the  27th  November,  1813,  be- 
tween  the  cestid  que  trusts  for  life, 
and  remainder  in  fee,  and  the  trus- 
tee, of  a  certain  trust  estate,  held 
by  the  latter  in  fee,  the  object  of 
which  was  to   lease  out  the  trust 
property  then  unimproved,  and  se- 
cure to  the  cestui  que  trusts  in  re- 
mainder, an  immediate  participa- 
tion in  the  rents.    For  that  purpose 
it   wa§   agreed,    that  the   trustee/ 
should  appoint  an  agent,  to  make 
leases  for  ninety-nine  years,  with 
liberty  of  renewal,  for  such  rents  as 
should  be  thought  reasonable  by  the 
parties  interested,  payable  annually 
during  the  terms,  to  the  agent  in 
trust,  as  follows  : — viz.  one   half 
to  one  c.  q.  t.,  in  remainder,  during 
her  life;  and  after  her  death,  to  her 
children,  their  executors  and  admin- 
istrators; one  fourth  to  another  c.  q. 
t.,  in  remainder  for  life,  with  a 
similar  reservation  to  her  children, 
&c.  The  other  fourth,  to  the  c.  q.  t. 
for  life,  during  her  life,  and  after 
her  death  to  the  last  above  men- 


tioned c.  q.  t.  in  remainder,  her  ex- 
ecutors and   administrators.     On  the 
29th  September,  1823,  a  bill  was 
filed  by  two  of  the  c.  q.  t.,  against 
the  third,  for  a  specific  execution 
of  the  agreement,  upon  the  ground 
that  the  defendant,  since  the  year 
1818,  had  prevented  the  execution 
of  the  leases,  and  refused  to  do  any 
act,  towards  carrying  the  contract 
into  effect.     This  charge  being  es- 
tablished, and   it  appearing  that 
the   parties  were  near  relations, 
and  that  the    complainants    had 
made  frequent  efforts  for  an  ami- 
cable arrangement,  IT  WAS  HELD, 
that  there  was   an  adequate  con- 
sideration to  support  this  agree- 
ment, for  the  violation  of  which 
damages   to  the  full  extent  of  the 
injury  sustained,  might  be  recover- 
ed; that  the  complainants  had  not 
slept  upon  their  rights  in  such  a 
way,  as  to  shew  the  contract  had 
been   abandoned;    that  Chancery 
has  power  to  grant  adequate  re- 
lief, which  could  only  be  done  by 
providing  the  means,  necessary  to 
carry  into  effect  the  leading  object 
of  the  parties,  the  leasing  the  pro- 
perty at  reasonable  rents;  and  that 
in  doing  this,  it  was  the  duty  of 
the  court,  to  gratify  the  minor  pro- 
visions of  the  agreement,  so  far  as 
it  could  be  done  consistently,  with 
the  accomplishment  of  the  grand 
design,    -    -    -     -    -    -    -     Ib. 

31.   The  defendant,  in  this  case,  was 
deemed  to  have  forfeited  the  right 
of  fixing  the  reasonableness  of  the 
rents,  to  be  reserved  in  the  leases 
referred  to  in  the  preceding  con- 
tract, by  shewing  her  determination 
to  act  in  such  a  way,  as  to  render 
>     her  exercise  of  that  right  wholly 
inconsistent  with  the  relief  due  to 
the  complainants,   and   her  right 
was  therefore  transferred  to  a  trus- 
tee appointed  for  the  purpose  of 
executing  the  agreement;   which 
trustee    was  enjoined  to  execute 
leases,  for  such  rents,  as  he,  to- 
gether    with    the     complainants, 
should  think  reasonable,    -    -   Ib. 
32.    Where   an   agreement  contains 
provisions,  which,    by  reason    of 
some  technical  principle  of  law, 
cannot  be  carried  into  effect,  ac- 
cording to  its  literal  import,   it  is 
the  duty  of  a  court  of  equity,  for 
the  sake  of  the  intent,  to  give  it 
that  construction  which^the  rules  of 


526 


INDEX. 


law  will  tolerate;  and  the  intention 

of  the  parties,  to  be  collected  from 

the  whole  instrument,  will  justify, 

Ib. 

33.  So  the  interests  of  the  eeatui  que 
trials,  in  remainder,  in  the  proper- 
ty  referred    to   in  the  preceding 
agreement  being  real,  and  not  per- 
sonal estate,  and  as  such,  could  not 
be  limited  to  their  executors  atuUad- 
ministrators.  The  court  decreed  the 
rent  to  be  paid  to  the  c.  q.  t.  and 
their  heirs,  and  this  as  to   all  the 
parties  entitled  to  such  rents,  -  15. 

34.  The  rule,  that  a  court  of  Equity 
will  sometimes  adopt  a  more  libe- 
ral and  enlarged  construction  than 
prevails  at  law,  can  never  be  tole- 
rated, unless  it  be  necessary  to  ef- 
fectuate the  motives  which  indu- 
ced   a   contract.     Union  Bank   of 
Maryland  vs.  Edwards,  -     -     -  346 

35.  Relief,  by  the  doctrine  of  substi- 
tution, is  never  extended  to  a  secu- 
rity, but  upon  the  assumption  that 
the  creditor's  debt  has  been,  or  is 
to  be  fully  paid — that  his  further 
detention  of  the  mortgaged  proper- 
ty, is  against  equity  and  good  con- 
science,    -------     /ft. 

36.  So  where  a  mortgage  was  exe- 
cuted, for  the  purpose  of  securing 
the  payment  of  all  or  every  sum  or 
sums   of  money,  then  owing,    or 
which  might  thereafter  be  due  and 
owing   from  the  mortgagor  to  the 
mortgagee,  upon   any   promissory 
note,  or  notes  negotiated  or  to  be 
negotiated  with  the  mortgagee,  of 
which  the    mortgagor     might   be 
drawer  or  endorser,  or  otherwise 
however,  and  upon  sale  of  the  mort- 
gaged premises,  the  proceeds  be- 
ing insufficient  to  pay  a  note  of  the 
mortgagor's  to  the  mortgagee,  for 
which  the  latter  had  no  other  se- 
curity than  the  mortgage  ;  it  teas 
held,  than  an  accomodation  endors- 
er on  the  note  of  the   mortgagors, 
discounted  by  the  mortgagee  after 
the  execution  of  the  mortgage  and 
before  the  sale,  could  not  call  upon 
a  court  of  equity  to  distribute  the 
fund  above  mentioned,  rateably,  in 
payment  of  both  notes,   -    -    -  Ib. 

37.  A  complainant  filed  an  exception 
to   an    answer,    and   the   County 
Court  without   deciding  upon  it, 
referred  the  case  to  the  Auditor, 
who  stated  an  account,  rejecting  a 
credit  claimed  by  the  defendant's 
answer ;  to  this,  exceptions  were 
also  filed,  and  over-ruled,  and  the 


account  ratified.  Upon  appeal,  it 
teas  held,  that  the  County  Court 
had  acted  prematurely,  that  after 
the  exceptions  to  the  answer  had 
been  decided  ou,  the  case  should 
have  been  set  down  for  argument 
on  bill  and  answer,  or  a  replication 
to  the  answer  put  in,  and  an  oppor- 
tunity afforded  to  the  respondent, 
to  make  out  his  defence,  by  proof. 
Egerton,  et  al.  vs.  Reilly,  et  ux.  -  393 

38.  A  bill  was  filed  in  June,  1823,  and 
the   usual  process  of  s\ibpcena  and 
attachment    issued,    which    were 
served  on  the  defendant  from  term 
to  term,  until  March,    1824.     He 
failing  to  appear,  the  Chancellor 
passed  an  order  to  take  the  bill  pro 
confesso,  which  was  also  served  on 
the  defendant  the  1st  of  May  fol- 
lowing.    The  cause  was  then  pro- 
ceeded in  to  final  decree  in  August, 
1825,  and  a  fieri  facias  issued,  re- 
turnable to  December  term,  1825, 
at  which  term  the  original  defend- 
ant with  others  alleged  to  be  inter- 
ested in  the  decree,  filed  a  bill  to 
have  the  execution  countermanded, 
the  decree  opened,  and  an  answer 
of  the  defendant  to  the  first  bill  ac- 
cepted.    The  grounds  of  this   ap- 
plication were,  that  the  claim  was 
unfounded,     that    proper    parties 
were  not  originally  made,  and  that 
the  defendant  had  been  prevented 
by  the   omissions   of  his    counsel 
prior  to  June,  1824,  and  by  acci- 
dent in  the  transmission  of  his  an- 
swer since  that  time,  from  putting 
in  his  answer  as  he  designed  and 
intended.     Upon  this  the  Chancel- 
lor countermanded  the  execution, 
and  after  answers  were  filed  con- 
troverting this  application,  rescin- 
ded the  decree  of  August,   1825, 
and  all  proceedings  subsequent  to 
July,    1824.      Upon    appeal   it  was 
held,  not  to  be  consistent  with  the 
salutary  exercise  of  that  sound  dis- 
cretion which  the  Court  of  Chan- 
cery   possesses,    to    open  or   dis- 
charge the  enrollment,  and  vacate 
the  decree  in  this  case,  for  the  pur- 
pose of  enabling  the  defendant  to 
make  his  defence.    Lurch,  et  al.  vs. 
Scott, 393 

39.  A  decree  of  the  Court  of  Chan- 
cery is  to  be  considered  and  taken 
as  enrolled,  when  5t  is  signed  by 
the  Chancellor,  and   filed  by   llic 
register,  and  the  term  has  elapsed 
during  which  it  was  made,  -    -  Ib. 

40.  A  divorced  wife   may  recover 


INDEX. 


527 


("having  merilsj  a  maintenance  sui- 
table to  her  station  in  life,  and  to 
quadrate  with  the  situation  of  her 
husband  by  a  bill  in  Chancery. 
Crane  vs.  Jtteginnis,  -  -  -  -  4  63 

41.  To  obtain  a  partition  of  land  in 
equity,  the  complainant  must  allege 
and  establish  a  seisin  in  himself. 
Warfield  vs.  Gambrill,    -    -    •  503 

42.  To  a  bill  praying  for  a  partition 
of  lands,  alleging  a  seisin  in  the 
complainant  with   others,  the  de- 
fendant in  his  answer  did  not  re- 
spond to  the  averment  of  seisin  : 
the  cause  being  set  down  for  hear- 
ing upon  bill  and  answer,  the  si- 
lence of  the  defendant  is  no  admis- 
sion of  that  fact,  and  the  complain- 
ant having]  taken  no  proof  of  it, 
his  bill  was  dismissed,    -    •    -  Ib. 

43.  A  respondent  submitting  to  an- 
swer must  answer  fully,  but  if  the 
answer  be  defective  and  insufficient 
to  meet  the  allegations  and  inter- 
rogatories of  the  bill,  the  complain- 
ant desiring  a  fuller  response  must 
except  to  the  answer  ;  if  he  do  not, 
he  cannot  rely  upon  the  silence  of 
Ihe  respondent,  in  relation  to  any 
material  allegation,  but  must  prove 
it, 76. 

44.  It  is  the  common  practice  where 
a  purchaser  is  kept  out  of  posses- 
sion by  the  former  owner,  for  the 
Chancellor  to  interpose  the  author- 
ity of  that  court,  and  cause  the  pos- 
session to  be  delivered  up.    Gotran 
vs.  Sumwalt,     -----      511 

45.  But  where  G  purchased  property 
at  a  sale  under  a  decree,  and  gave 
his  notes  with  S  as  his  surety  for 
the  purchase  money,  which  S  was 
afterwards  obliged  to  pay,  and  G 
then  executed  a  deed  of  the  same 
property  to  S,  which,  however,  was 
left  with  I  as  an  escrow,  to  be  deli-/ 
vered  upon  a  condition  that  did  not 
appear  to  have  been  performed  ; 
G  being  in  possession,  could  not  be 
ousted  by  the  authority  of  the  Court 
of  Chancery.    And  even  if  a  mort- 
gage had  been  executed  by  him  to 
secure  S,  the  proceedings  in  Chan- 
cery should  be  of  a  different  char- 
acter,     --------  /ft. 

See  Action— right  of,  3,  6. 

DAMAGES. 

1.  In  an  action  on  an  insolvent  deb- 
tor's bond  for  his  appearance,  the 
amount  of  the  creditors  debt  is  the 
measure  of  damages  ;  and  neither 


the  poverty  of  the  applicant,  nor 
the  fact  that  no  allegations  were 
filed  against  the  insolvent,  consti- 
tutes a  defence.  Kiersted,  Sfc.  vs. 
The  State  use,  Sfc.  -  -  -  -  231 

2.  In  an  action  upon  an  agreement,  by 
which,   after  reciting  that  D  had 
sold  to  W  tracts  or  parcels  of  land, 
sold  by  A  to  C  and  R,  and  by  their 
agents  sold  to  D,  and  for  which,  D 
had  executed  a  deed  to  W  ;  D  cov- 
enanted with  W,  that  a  deed  should 
be  executed  to  him,  conveying  to 
him  the  said  lands  of  C  and  R,  by 
a  given  day,  and  to  that,  bound  him- 
self in  a  certain  penalty  ; — such 
penalty   cannot   be  recovered   as 
liquidated  damages,  it  was  only  in- 
tended by  the  parties  as  a  security 
for  the  faithful  performance  of  the 
contract.     Dyer    vs.    Dorsey    and 
Edelen, 440 

3.  In  this  case,  the   sum  of  money 
which  it  might  be  necessary  to  pay, 
for  obtaining  the  title  of  C  and  R, 
would  furnish  the  true  measure  of 
damages,  for  a  breach  of  D's  cove- 
nant, the  proof  of  which  sum  was  on 
the  plaintiff ;  and  it  appearing  that 
the   plaintiff  had  not  paid  D  the 
whole  of  the  purchase  money   for 
the  said  lauds,  the  jury  were  pro- 
perly instructed,  that  in  estimating 
the  amount  of  damages,  they  should, 
under  the  act  of  1785,c/t.  46,  sec.  7, 
deduct  whatever  sum  of  money  re- 
mained in  the  hands  of  the  plaintiff 
on  account  of  said  purchase,   -   Ib. 

See  Evidence,  3. 

DECREE  IN  CHANCERY. 

A  decree  of  the  Court  of  Chancery, 
is  to  be  considered  and  taken  as  en- 
rolled, when  it  is  signed  by  the 

/  Chancellor,  and  filed  by  the  Regis- 
ter, and  the  term  has  elapsed  dur- 
ing which  it  was  made.  Burch,  r.l 
al.  vs.  Scott, 393 

DECRETAL  ORDER. 

Sec  Appeal,  1,  2,  3. 

DEVISE. 

See  Manumission  of  slaves,  1,  2. 

—  Wills. 

DISTRESS. 

See  Replevin,  1. 

DISTRIBUTEE   AND    DISTRIBU- 
TION. 

Sec  Acts  of  Assembly,  1. 

—  Executors  and  Administrators,  3. 

—  Action— right  of,  3,  G. 


5-.JS 


INDEX. 


DIVORCES. 

Divorces  in  this  State,  from  the  earli- 
est times,  have  emanated  from  the 
General  Assembly  ;  and  can  now 
be  viewed  in  no  other  light,  than 
as  regular  exertions  of  legislative 
power.  Crane  vs.  Meginnis,  -463 

EJECTMENT. 

1.  It  is  true,  as  a  general  principle, 
that  the  lines  of  a  tract  of  land 
originally  run  by  course  and  dis- 
tance, without  calls,  must  be  con- 
fined to  the  course  and  distance, 
and  cannot  be   extended   beyond 
them.     Giraud's  lessee   vs.  Hughes, 
etal. -    249 

2.  Where  a  tract  of  land  lies  adja- 
cent or  contiguous  to  a  navigable 
river  or  water,  any  increase  of  the 
soil,  formed  by  the  water  gradually 
or  imperceptibly  receding,  or  any 
gain  by  alluvion  in  the  same  man- 
ner, shall,  as  a  compensation  for 
what  it  may  lose  in  other  respects, 
belong  to  the  proprietor  of  the  ad- 
jacent or  contiguous  land.  It  is  not 
upon  the  principle  that  the  land  calls 
for  the  water ;  but,  because  it  ad- 
joins the  water,  that  the  owner  ac- 
quires a  title  to  the  soil  so  formed,  Ib 

3.  In   ejectment   it   appeared,  that 
the  land,  for  which  the  action  was 
brought,  and  which  had  been  re- 
cently patented    as   vacant   land, 
had   been  formed  by  the  gradual 
recess  of  the  waters  on  the  shores 
of  the  river  Patapsco ;   and   that 
another  tract  of  land  the  lines  of 
which  ran  into,  though  they  did 
not  call  for  the  water,  where  the 
recession  took  place,  had  been  pa- 
tented many  years  before.      The 
defendant  claiming  title  under  the 
grant  of  this  last  tract,  HELD  that 
the  action   could  not  be   sustain- 
ed,   n. 

4.  The  Port  Wardens  of  Baltimore  by 
the  act  of  1783,  ch.  24,  were  au- 
thorized to   grant  permissions  to 
make  wharves,  but  in  order  to  vest 
a  title  in  any  such  wharf,  it  is  es- 
sential by  the  provisions  of  the  act 
of  1745,  ch.  9,  sec.  10,  that  the 
grantee  should  have  completed  it 
according  to  his  permission,  -  Ib. 

5.  A  return  by  the  sheriff  to  a  writ 
of  fieri  facias,  that  he  had  levied 
upon  a  part  of  a  tract  of  land  call- 
ed B,  supposed  to    contain,  &c. 
would  be  unavailing  in  ejectment 


to  prove  title  in  a  purchaser.  Clarke 
vs.  Belmear,     ------  443 

See  Execution,  5. 

ENROLMENT. 
See  Way— right  of,  1. 
Court  of  Chancery,  38,  39. 

EQUITY  JURISDICTION. 

See  Court  of  Chancery. 
Action — right  of  3,  6. 

EVIDENCE. 

1.  No  person  who  is  called  as  a  wit- 
ness, not  being  a  party  to  the  suit, 
can  refuse  to  give  testimony  on  the 
ground,  that  he  may  thereby  be- 
come liable  to  a  civil  action  not  of 
a  penal  nature  ;  or  sustain  pecunia- 
ry loss;  or  that  the  verdict  may  be 
used   as   evidence  against  him  in 
some  other  civil  proceeding  then 
pending,  or  which  may  thereafter 
be   instituted.     Hays  vs.   Richard- 
son,  ---------  366 

2.  A  witness  on  the  voir  dire,  may  by 
the  party  objecting  to  his  examina- 
tion  in  chief,  for  the  purpose  of 
shewing  his  interest,  be  called  on 
to  state  the  contents  of  written  in- 
struments, which  are  not  produced ; 
and  the  reason  assigned  is,  that  the 
party  objecting,  could  not  know 
previously,  that  the  witness  would 
be  caUed,  and  consequently,  might 
not  be  prepared  with  the  best  evi- 
dence to  establish  his  objction,  Ib. 

3.  In  an   action  upon  a  bond,  with 
condition  that  the  obligor,  the  de- 
fendant, should  exhibit  all  the  pa- 
pers concerning  and  touching  the 
estate  of  the  late  W,  deceased,  to 
B,  mutually  appointed  by  the  obli- 
gor and  obligee  to  settle  said  estate, 
issue  was  joined  upon  a  replication, 
which   assigned  as  a  breach,  the 
failure    to   exhibit    such  papers. 
HELD,  that  it  was  competent  for 
the  plaintiff  to  offer  in  evidence,  an 
inventory  of  W's  personal  estate, 
returned  by  the  defendant  as  his 
administrator  to  the  Orphan'sCourt, 
it  being  a  paper  concerning  the 
estate  of  W,  necessary  to  its  settle- 
ment, one  which.by  the  condition  of 
the  defendant's  bond,  should  have 
been  exhibited  to  B,  and  proper  to 
enable  the  jury  to  ascertain  the 
amount  of  damages  to  be  awarded 
to  the  plaintiff.    Halkerstone's  Ex. 
vs.  Hawkins,   ------  437 


INDEX. 


529 


4.  It  is  not  competent  to  prove  by 
oral  testimony  the  existence  of 
facts  to  be  ascertained  by  public 
commissioners,  preparatory  to  lay- 
ing a  tax,  which  such  commission- 
ers are  required  to  certify  in  writ- 
ing. Mayor  and  City  Council  of  Bal- 
timore vs.  Hughes,  -  -  .  -  480 

See  Jury,  1. 

— •  Shipping,  7. 

—  Promissory  Note,  6. 

— —  Court  of  Chancery,  21. 

EXECUTION. 

1.  A  return  by  the  sheriff  to  a  writ 
of  fieri  facias,  that  he  had  levied 
upon  "part  of  a  tract  of  land  call- 
ed B,  supposed  to  contain,  &c."  is 
not  sufficient,  would  be  quashed  on 
motion,  and  unavailable  in  eject- 
ment to  prove  title  in  a  purchaser. 
Clarke  vs.  Belmear,  -     -    -    -  443 

2.  A  purchaser  at  a  sheriff's  sale  is 
entitled  to  the  benefit  of  that  offi- 
cer's return,  both  to  the  fieri  facias, 
and  venditionl  exponas;   and  when 
the  description  of  the  subject  le- 
vied on,  according  to  the  schedule 
returned  under  the  first  writ,  is  de- 
fective,  it   may  be  amended   and 
rendered  certain,  by  the  return  of 
the  sheriff's  proceedings,  under  the 
second  writ,  ------     Ib. 

3.  So  a  levy  under  a  fieri  facias  which 
is  defective  in  the  description  of 
the  property    levied   on,   may  be 
amended  by  the  sheriff's  return  of 
the  property  sold  under  such  writ, 
the  return  of  the   sale  describing 
the  property  with   sufficient  cer- 
tainty, .-•---»•    A. 

4.  A  purchaser  under  a  judicial  sale 
has  a  right  to  resort  to  the  whole 
judicial  proceedings,  under  which 
his    title    accrued,    to    ascertain 
it, -  > 

5.  The  right  of  a  party  to  obtain  a 
writ  of  habere  facias  possessionem, 
under  the  act  of  1825,  ch.  !03,  does 
not  relate  to  the  time  the  execu- 
tion was  issued,  but  to  the  time 
when  the  lands  were  sold,     -    Ib. 

EXECUTORS  AND  ADMINISTRA- 
TORS. 

1.  According  to  the  law  of  England 
an  administrator  d.  b.  n.  cannot 
call  the  representatives  of  the  pre- 
vious deceased  administrator  of  his 
intestate  to  account,  for  any  pro- 

VOL.  I.— 67 


perty  of  the  intestate  that  such  pre- 
decessor may  have  converted  or 
wasted;  nor  can  he  claim  or  reco- 
ver any  thing  but  those  goods  and 
chattels  and  credits  of  his  intestate 
which  remain  in  specie,  and  are 
capable  of  being  clearly  and  dis- 
tinctly designated  and  distinguish- 
ed as  the  property  of  the  intes- 
tate. PER  BLAND  CHAN'R.  Hag- 
thorp  vs.  Hook,  -  -  -  -  -  270 

2.  In  equity  an  executor  or  adminis- 
trator is  considered  as  a  trustee  of 
the  creditors,  legatees,  and  next  of 
kin  of  the  deceased;  is  expected 
and  required  to  preserve  the  pro- 
perty of  the  deceased  apart  from 
his  own;  and  if  he  does  so,  the 
court  will  do  every  thing  that  can 
be  done  to  assist  him.  IB.   -    -  Ib, 

3.  The  only  remedy  at   present  a- 
gainst  an  administrator  or  his  re- 
presentatives for    any    waste    or 
misapplication  of  the  effects  of  the 
deceased,  is  by  an  action  at  law 
upon  his  administration  bond,  by 
any  one  interested.  IB.  -    -    -  16. 

4.  The  authority  conferred  by  letters 
of  administration  d.  b.  n.  by  our 
law  is  to  administer  all  things  de- 
scribed in  the  act  of  assembly  as 
assets,  not  converted  into  money, 
and  not  distributed,  delivered,  or 
retained  by  the  former  executor  or 
administrator  under  the  direction 
of  the   orphans'  court;  and  such 
administrator   can   only    sue    for 
those  goods,  chattels  and   credits 
which  his  letters  authorise  him  to 
administer.    IB.    -----  Ib. 

5.  The  legal  title  to  the  chattels  real, 
and  personal  estate  of  an  intestate, 
vests   in    his    administrator,   who 
alone  is  considered  as  to  them  his 

/  legal  representative  j  between  the 

/  death  and  the  granting  of  letters, 
that  title  is  suspended  and  vested 
in  no  one.  IB.  -----  Ib. 

See  Manumission  of  slaves,  2. 

—  Action — right  of,  3,,6. 

FIERI  FACIAS. 

See  Execution,  1,2,  3. 

FREEDOM. 

See  Manumission  of  slaves. 

FREIGHT. 

For  an  instance  where  a  ship  master 
was  not  permitted  to  retain  money 
received  as  freight  in  a  foreign 


530 


INDEX. 


country,  when  in  point  of  law  he  INJUNCTION 

h:id  not  i-xnu-d  it,  though  ho  h;ul  in  c     «„,        ,  0 

fact  delivered  his  cargo- Sec  ship-  See  C°urt  °f  C^anceiy,  1,  2,  3,  5. 

ping,  8,  9,  10.  ~  APPeal>  L 


GUARANTY. 

See  Nudum  pactum,  1. 

HUJERE  FAGIASPOSSESSIONEM 
See  Execution,  5. 

—  Purchaser,  7. 

—  Court  of  Chancery,  44,  45. 

IMPROVEMENTS. 

See  Court  of  Chancery,  22,  23. 

INCORPOREAL  HEREDITA- 
MENTS. 

See  Way— right  of,  1,  2,  3,  4. 
— •  Acts  of  Assembly,  2. 

INFERIOR  JURISDICTION. 

1.  Every  inferior  jurisdiction,  whe- 
ther created  by  a  public  or  a  pri- 
vate  law,  is   subject  to   have  its 
proceedings  inspected  either  by  ap- 
peal or  by  certiorari  and  mandamus 
where  such  jurisdiction  acts  judi- 
cially.     They  will  be  coerced  to 
perform  their  duties,  and  restrain- 
ed and  confined  within  their  pro- 
per limits   as   prescribed   by   law. 
PER  ARCHER,  J.  Williamson  vs.  Car- 
nan,     .--..-..     196 

2.  Where  these  jurisdictions  act  in  a 
summary   manner,    or   in  a    new 
course  different  from  the  common 
law,  a  certiorari  is  the  peculiar  and 
appropriate  remedy;  as  in  such  a 
case,  a  writ  of  error  will  not  lie. 
PER  ARCHER,  J.  -----    Ib. 

3.  A  certiorari  does  not  go  to  try  the 
merits  of  the  question,  but  to  see 
whether  the  limited  jurisdictions 
have  exceeded  their  bounds.     PER 
ARCHER,  J.  Ib.  -    -    -     -     -     197 

4.  A   certiorari  will   lie  .after   judg- 
ment, where  the  jurisdiction  pro- 
ceeds in  a  summary  manner,  and 
in  a  course  different  from  the  com- 
mon law.     PER  ARCHER,  J.    -    Ib. 

5.  A  certiorari  may  issue  even  after 
judgment  executed,  where  a  limit- 
ed authority  has  been  transcended 
by  inferior  jurisdictions,  in  cases 
where  no  writ  of  error  lies,  for  the 
purpose  of  quashing  their  proceed- 
ings.    PER  ARCHER,  J.  -    -     -  Ib. 

See  Levy  Court. 

— •  Court  of  Chancery,  4. 


INSOLVENT  DEBTOR. 

Where  an  applicant  for  a  discharge 
under  the  acts  relating  to  insolvent 
debtors,  fails  to  appear  according 
to  the  condition  of  the  bond  taken 
from  him,  an  action  in  the  name 
of  the  State,  (the  obligee)  for  the 
use  of  a  creditor,  may  be  maintain- 
ed thereon,  against  the  applicant's 
security  in  the  bond.  The  plead- 
ings must  disclose,  that  the  equita- 
ble plaintiff  was  a  creditor  of  the 
insolvent,  to  a  certain  amount;  and 
the  applicant's  failure  to  appear. 
The  amount  of  the  creditor's  debt, 
is  the  measure  of  damages;  and 
neither  the  poverty  of  the  appli- 
cant, nor  the  fact  that  no  allega- 
tions were  filed  against  him  by 
creditors,  constitutes  a  defence 
thereto.  Kiersted,  Sfc.  vs.  The  State, 
use  Sfc 231 

See  Construction,  3. 

JUDICIAL  POWER. 

See  Constitutional  Law,  5,  7. 

JURISDICTION. 

See  County  Court. 

—  Inferior  Jurisdiction,  1,  2,  3,  4,  5. 

—  Court  of  Chancery,  4. 

—  Appeal— right  of,  1,  2,  3. 

—  Action,  3,  6. 

—  Constitutional  Law. 

JURY. 

It  is  the  unquestionable  and  ex- 
clusive right  of  the  jury  to  decide 
on  facts,  of  the  existence  of  which, 
contradictory  testimony  is  adduced. 
Paieson  vs.  Donnell,  -  -  -  -  1 

JUST  ALLOWANCES. 

1.  Under  the  head  of  just  allowances, 
it  has  long  been  the  course  of  this 
court,  to  allow  a  trustee  or  mort- 
gagee in  possession,  for  all  necessa- 
ry expenses  incurred  for  the  de- 
fence,  relief,    protection    and  re- 
pairs of  the   estate.     And   when 
a  mortgagee  thinking  himself  ab- 
solutely   entitled,    had    expended 
considerable  sums   in  repairs  and 
lasting  improvements,  he  should  be 
allowed  the  value  of  them.     PER 
BLAND,  Cn.  Hagthorp  vs.  Hook,   270 

2.  The  estimate  of  the  value  of  such 


INDEX. 


531 


lasting  improvements,  is  to  be  taken 
as  they  are,  at  the  time  of  account- 
ing, or  passing  the  final  decree; 
and  in  charging  rents  and  profits, 
the  estimate  must  not  include  those 
arising  exclusively  from  such  im- 
provements, IB.-  -  -  -  -  Ib. 
See  Court  of  Chancery,  22,  23. 

LANDLORD  AND  TENANT. 

1.  G,  a  feme  sole,  contracted  with  the 
plaintiff  to  let  him  sow  a  field  in 
grain,  and  he  agreed  to  give  her 
one  third  of  all  the  grain  raised,  as 
rent.  The  plaintiff  went  upon  and 
sowed  the  field  in  rye.  The  defen- 
dant, who  after  the  making  the  con- 
tract, intermarried  with  G,  entered 
upon  the  field,  refused  the  plaintiff 
permission  to  cut  the  crop,  and  af- 
terwards cut  it  himself  and  carried 
it  away.  In  an  action  of  trover  for 
the  value  of  the  rye,  it  was  held 
that  the  contract  between  G  and 
the  plaintiff,  clearly  constituted 
them  landlady  and  tenant;  and  that 
the  plaintiff  was  entitled  to  reco- 
ver. Hoskins  vs.  Rhodes,  -  -  266 
2.  The  reservation  of  rent  eo  nomine 
necessarily  constitutes  a  lease.  16. 

LEASE. 

The  reservation  of  rent  eo  nomine 
necessarily  constitutes  a  lease. — 
Hoskins  vs.  Rhodes,  -  -  -  -  266 

LEGISLATURE. 
See  Constitutional  Law. 

LEVY  COURT. 

1.  The  Levy  Court  is  the  sole  and 
proper  tribunal  to  which  the  laws 
have  confided  the  adjudication  of 
the  question  whether   the    public 
convenience  requires  an  alteration 
in  a  public  road.     PER  ARCHER,  J. 
Williamson  vs.  Carnan,     -    -     196 

2.  The  Levy  Court  of  Baltimore  Coun- 
ty, in  their  power  to  open  and  alter 
roads,  is  a  tribunal  of   limited  ju- 
risdiction, proceeding  in  a  summa- 
ry method,   and  in  a  course   un- 
known   to    the  common  law;    in 
their  confirmation  of  the  return  of 
the  commissioners,  under  the  act 
of   1821,  ch.    152,  in    relation  to 
roads,   they    act    judicially    and 
not  ministerially.     PER  ARCHER,  J. 
Ib. 197 

3.  Without  the  notice  required  by  the 


act  of  1794,  ch.  52,  they  have  no 
power  to  open,  amend,  alter, 
change,  widen  or  straighten  a 
road.  IB.  -------  Ib.  - 

4.  Until  a  number  of  inhabitants  pe- 
tition for  a  road  under  the  act  of 
1821,  ch.  152,  they  have  no  power 
to  appoint  a  commissioner,  or  to 
pronounce  a  judgment  on  any  re- 
turn of  commissioners.  IB.  -    -  Ib. 

5.  The  notice  required  by  law  of  an 
intended  petition  to  alter  a  road, 
should  correspond  with  the   time 
when  a  legal  petition  was  first  pre- 
ferred to  the  Levy  Court.  IB.  -  Ib. 

6.  The  notice  being  to  March  term, 
and  no  petition  within  the  meaning 
of  the  law  until  July,  it  was  not 
such  as  is  required  by  law.  IB.    76. 

7.  A  notice  in  conformity  with  law 
cannot    be    presumed,  when    the 
papers  and  record  returned  show 
an  illegal  and  insufficient  one.  IB. 
16. 

8.  Where  there  is  no  notice  within 
the  meaning  of  the  law  conferring 
power  on  the  Levy  Court,  its  whole 
proceedings  are  coram  non  judice 
and  void.  IB.  ------    J6. 

See  Inferior  Jurisdiction,  1  to  5. 

LIQUIDATED  DAMAGES. 

See  Damages,  2,  3. 

MANUMISSION  OF  SLAVES. 

1.  By    a   devise    in   the    following 
words,  viz.     "likewise  my  negro 
man    Charles  to  be  free  on  the  1st 
day  of  January,  1827,  on  condition 
that  he  pay  the  sum  of  ten  dollars 
annually,  to  my  before  named  sis- 
ter M,  so  long  as  he  lives,"  it  was 
the  intention  of  the  testator,  who 
died  in  1825,  that  the  slave  men- 
tidned  in  the  devise  should  be  free 
pn  the   1st  January,  1827;  and  it 
could  not  have  been  his  intention  • 
that     the     condition     mentioned, 
should    have  been   performed  by 
Charles,  precedent  to  that  day,  as 
the  acts  to  be  done  consists  of  pay- 
ments to  be  made  by  him  annually, 
as  long  as  he  may  live.    Miller  vs. 
JVegro  Charles,    -----    390 

2.  Upon  a  petition  for  freedom  by  a 
negro  claiming  his  right  to  manu- 
mission, under  a  last  will  and  tes- 
tament, against  the    executor  of 
his  deceased  master,  the  parties 
agreed  upon  a  statement  of  facts, 


632 


INDEX. 


which  did  not  disclose  wlu-llicr  the 
ti-stator  left  assets  sudicicnt  for 
the  payment  of  his  debts  or  not; 
held  that  the  objection  to  the  man- 
umission arising  from  the  insuffi- 
ciency of  assets  was  not  before  the 
court,  ........  Jb. 

MAYOR  AND  CITY  COUNCIL  OF 
BALTIMORE. 

1.  Under  the  2d  sec.  of  the  act  of 
1797,  ch.  54,  the  power  given  to 
the  Mayor  and  City  Council  of  Bal- 
timore, "to  tax  any  particular  part 
or  district  of  the  city,  for  paving 
the  streets,  lanes  or  alleys  therein, 
or  for  sinking  wells  or  erecting 
pumps,  which  may  appear  for  the 
benefit  of  such  particular  part  or 
district,"  is  not  confined  to  any 
particular  description  of  benefit — 
such  as  the  ordinary  benefit  and 
advantage  of  paved  streets.  The 
perservation  of  the  health  of  such 
particular  part  of  the  city,  is  a 
benefit  within  the  meaning  and 
scope  of  the  act.  The  Mayor  and 
City  Council  of  Baltimore  vs.  Hughes, 
480 

2.  The  legality  of  laying  such  tax, 
does  not  depend  upon  whether  the 
paving  does,  or  does  not   in  fact, 
benefit  the  particular  district  tax- 
ed, but  upon  the  object,  the  mo- 
tive of  the  corporation  in  causing 
the  paving  to  be  done,    -    -    Ib. 

3.  In  an    ordinance    providing   for 
such  paving,  and  the  imposition  of 
such  a  special  tax,  it  is  not  neces- 
sary that  it  should  be    expressly 
stated  to  be  lor  the  benefit  of  the 
particular  district;  if  nothing  ap- 
pears to  the  contrary,  such  an  ex- 
ercise of  the  special  taxing  power 
will  be  taken  to  have  been  in  pur- 
suance of  the  authority  given  by 
the  charter,    ------  Ib. 

4.  But  where  an  ordinance  provides 
for  the  paving  of  a  street,  &c.  in  a 
particular  district,  and  the  imposi- 
tion of  a  special  tax  for  that  pur- 
pose on  such  district,  which  paving 
appears  from  the  ordinance  to  be  for 
the  general  benefit  of  the  city,  and 
not  for  the  benefit  of  the  particular 
district,  it  is  not  in  pursuance  of 
the  authority  conferred  by  the  char- 
ter, and  is  void,    -    -    -    -    -    Ib. 

5.  So  upon  the  construction  of  the 
13th  sec.  of  the  ordinance  of  thc'Jth 
March,  1807,  which  declares  "that 


if  the  Commissioners  of  Health  shall, 
at  any  time  report  in  writing  to  the 
City  Coirattoioner*tthat  a  nuisance 
exists  in  any  street,  lane,  or  alley 
in  the  city  of  Baltimore,  which  will 
endanger  the  health  thereof,' '  &c. 
it  was  held  that  the  word  tln-nnf 
does  not  relate  to  the  city  of  Balti- 
more, so  as  to  make  it  mean  a  nui- 
sance which  will  endanger  the 
city,  but  that  it  relates  to  any  street, 
lane  or  alley,  &c.  and  means  a  nui- 
sance that  will  endanger  the  health 
of  such  street,  &c.  and  the  ordi- 
nance is  clearly  within  the  power 
conferred  by  the  charter,  -  -  Ib. 

6.  A  corporation  must  act  within  the 
limits  of  its  delegated  authority, 
and  cannot  go  beyond  it,  yet  it  ought 
not  by  construction    be  made   to 
mean  what  is  not  clearly  express- 
ed, but  when  its  ordinances  will 
admit  of  two  constructions,  they 
should  receive  Jhat  which  is  consis- 
tent with  the  power  given,  and  not 
that  ^-Inch  is  in  violation  of  it,   Ib. 

7.  Y.nere  one  board  of  commission- 
ers, in  the  execution  of  their  du- 
ties, were   required  to   report   in 
writing  to  another  board  of  com- 
missioners, who  thereupon  were  to 
do  certain  acts;  and  these  boards 
were  subsequently  united  without 
any  change  being  prescribed  as  to 
the  mode  of  discharging  the  trusts 
formerly  confided  to  each  of  them, 
the  formality  of  a  written  report 
as  above  directed,  was  necessarily 
dispensed  with,  -----    J&. 

8.  Under  the  13th  section  of  the  ordi- 
nance of  the  9th  March,  1807,  the 
City  Commissioners  and  Commis- 
sioners of  Health,  were  required  to 
form  a  positive  and  decided  opi- 
nion that  "a  nuisance   exists"  in 
some  "street,  lane,  or  alley  in  the 
city  of  Baltimore,  which  will  en- 
danger the    health  thereof" — An 
entry  in  their  books  of  their  deci- 
sion is  not  required.    Certificates 
in  their  warrants,  which  they  are 
directed  to  issue  for  the  collection 
of  the  tax  imposed  to  remove  the 
nuisance,  of  the  existence  of  the 
nuisances  and  of  their  characters 
would  be  sufficient;  but  where  they 
say  in  each  warrant  that  they  con- 
ceive the  street  mentioned,  to  be 
in  a  state  of  nuisance,  which  might 
endanger  the  health  of  the  city, 
thus  referring  to  the  health  of  the 


INDEX. 


533 


city  generally,  not  to  that  of  a 
particular  part,  it  is  not  such  an 
opinion  as  the  ordinance  requires, 
and  the  tax  imposed  under  it  cannot 
be  enforced,  ------  Ib. 

9.  The  imposition  and  assessment  of 
a  tax  by  the  Mayor  and  City  Council 
of  Baltimore,  under  and  in  pursu- 
ance of  their  charter,  creates   a 
legal  obligation  to  pay  such  tax,  on 
which  the  law  raises  an  implied 
assumpsit  by  the  person  taxed.  Du- 
gan  vs.  Mayor  and  City  Council  of 
Baltimore,  -------    499 

10.  By  the  charter  of  the  city  of  Bal- 
timore,  (act  of  179 6,  ch.  68,  sec.  10,) 
it  is  provided  "that  the  person  or 
persons  appointed   to  collect  any 
tax  imposed  by  virtue  of  the  powers 
granted  by  this  act,  shall  have  au- 
thority to  collect  the  same  by  dis- 
tress, and  sale  of  the  goods,  and 
chattels,  of  the  person  chargeable 
therewith,"  and  by  the  ordinance 
of  the  corporate  authorities  of  that 
city  of  the  27th  March,  1817,  a  tax 
was  imposed,  and  the  collector  di- 
rected to  deliver  to  each  taxable 
person,  an  account  of  his  assess- 
ment and  tax  in  writing,  before  a 
given  day;  and  if  the  tax  should 
not  be  paid  within  a  month  there- 
after, to  proceed  without  delay  to 
recover  it  agreeably  to  the  mode 
prescribed  by  the  act  of  incorpora- 
tion.   In  an  action  brought  by  the 
Mayor  and  City  Council  of  Baltimore, 
to  recover  a  tax  imposed  by  the 
ordinance  of  1817,  it  was  held  un- 
necessary to  prove,  that  the  collec- 
tor had  delivered  the  account  be- 
fore mentioned  to  the  defendant; 
and  that  his  liability  to  be  sued,  in 
no  manner  depended  upon  the  dili- 
gence or  negligence  of  the  collec- 
tor,   -    -    -    Ib- 

MONEY  HAD  AND  RECEIVED. 

Whether  ship  owners  are  entitled  in 
equity  and  good  conscience,  to  re- 
tain money  received  on  account  of 
freight,  is  clearly  a  question  not  to 
be  left  to  the  jury;  but  proper  only 
to  be  decided  by  the  court,  under 
the  circumstances  of  each  case. — 
W.rgman's  Mm'r  vs.  Mactier,  150 

See  Assumpsit,  1,  2,  3. 

MONEY  PAID,  LAID  OUT,  AND 

EXPENDED. 
See  Assumpsit,  1, 2,  3. 


MORTGAGE. 
See  Court  of  Chancery,  8,  36. 

MUNICIPAL   CORPORATION. 

See  Mayor  and  City  Council  of  Balti- 
more. 

NEGROES  AND  SLAVES. 
See  Manumission  of  slaves,  1,  2. 

NOTICE. 

Where  the  papers  and  record  sent 
from  an  inferior  to  a  superior  tri- 
bunal, shewed  an  illegal  and  insuffi- 
cient notice  to  give  such  inferior 
tribunal  jurisdiction  of  the  cause, 
the  superior  tribunal  is  not  at  liber- 
ty to  presume  that  a  notice  in  con- 
formity to  law  was  given.  PER 
ARCHER,  J.  Williamson  vs.  Carnan, 
196 

See  Pleas  and  Pleading,  3. 

—  Purchaser,  1,  2,  3,  4. 

NUDUM  PACTUM. 

The  endorsement  of  T  on  the  pro- 
missory note  of  E  payable  to  A,  as 
follows,  "I  hereby  guarantee  the 
ultimate-  payment  of  the  within 
note,"  is  void  for  want  of  consi- 
deration; and  under  the  plea  of  non 
assumpsit  to  a  declaration  founded 
upon  that  guaranty,  the  objection 
to  the  want  of  consideration  may 
be  taken.  Jttdridge  &f  Higdon  vs. 
Turner, 427 

ORDINANCES  OF  THE  CITY  OF 
BALTIMORE. 

See  Mayor  and  City  Council  of  Balti- 
more. 

PAROL  EVIDENCE. 
See^Evidence,  2.,  4. 

PARTITION. 

1.  Upon  a  merely  equitable  estate  no 
writ  of  partition  can  be  maintained 
at  law.     Coale,  et  ux.  vs.  Barney,  et 
ux. 324 

2.  To  obtain  a  partition  of  land  in 
equity,  the  complainant  must  allege 
and  establish  a  seisin  in  himself. — 
Warfield  vs.  Gambrill>    -    -    -  503 

See  Wills,  1. 

PENALTY. 

See  Damages,  2,  3. 

PETITION  FOR  FREEDOM. 

See  Manumission  of  slaves,  1,  2. 


INDEX. 


PLEAS  AND  PLEADING  IN  EQUI- 
TY. 

See  Court  of  Chancery,  9,  1 1,  12,  13, 

I.'..  17,  -J4,  25,26,43. 

PLEAS  AND  PLEADING. 

1.  In  an  action  against  the  maker  of 
a  note  payable  at  the  house  of  the 
payee  and    plaintiff,  on   a  certain 
mimher  of  ilays  after  date,  no  de- 
maml  of  payment  is  necessary  to  be 
averred  or  proved.      Bowie  use  of 
Ladd  vs.  Duvall,     -    -    -    -     175 

2.  A  breach  on  an  insolvent  debtor's 
bond  taken  for  his  appearance  un- 
der the  act  of  1805,  ch.  110,  which 
disclosed  that  the  equitable  plain- 
tiff was  a  creditor  of  the  insolvent 
at  the  time  of  his  application  for 
relief,  to  a  certain  amount,  and  the 
applicant's  failure  to  appear  accor- 
ding to  the  condition  of  the  bond  is 
sufficient.  Kiersted,  &fc.  vs.  Tlie  Stale 
use,Sfc. 231 

3.  In  assigning  a  breach  of  the  condi- 
tion of  a  trustee's  bond  for  the  sale 
of  a  deceased  person's  real  estate, 
notice  to  the  trustee  of  the  Chan- 
cellor's distribution  of  the  proceeds 
of  sale,  (where  the  action  is  by  a 
creditor  to    recover    his     portion 
thereof,)  must  be  averred.     Clarke 
vs.  Belmear,    -    -    -    -     .    -    450 

4.  In  an  action  of  replevin,  where 
the  defendant  avowed  for  rent  in 
arrear,  the  plaintiff   cannot   rely 
upon  the  fact  that  the  distress  was 
not  made  in  due  time  after  the  ter- 
mination of  the  lease,  unless  it  be 
pleaded  as  a  defence.    Chappellear^s 
JEx'rs  vs.  Harrison,    -    -    -    -  477 

5.  A  tax  imposed  by  a  municipal  cor- 
poration cannot  be  recovered  on  a 
count  for  money  paid,  laid  out  and 
expended,  although' such  corpora- 
tion has  paid  the  cost  of  the  im- 
provement for  which  the  tax  was 
created.    Mayor  and   City  Council 
of  Baltimore  vs.  Hughes,    -    -    480 

PORT  WARDENS  OF  BALTIMORE 

The  Port  Wardens  of  Baltimore  by 
the  act  of  1783,  ch.  24,  were  au- 
thorised to  grant  permissions  to 
make  wharves,  but  in  order  to  vest 
a  title  in  any  such  wharf  it  is  essen- 
tial by  the  act  of  1745,  ch.  9,  sec. 
10,  that  the  grantee  should  have 
completed  it  according  to  his  per- 
mission. Girawd'a  lessee  vs.  Hughes, 
249 


POSSESSION. 
See  Execution,  5. 
— •  Purchaser,  7. 
—  Courl  of  Chancery,  44,  45. 

PRACTICE. 

It  is  the  unquestionable  and  exclu- 
sive right  of  the  jury  to  decide  on 
facts,  of  the  existence  of  which, 
contradictory  testimony  is  adduced. 
Pawson  vs.  Donnell,  -  -  -  -  1 

PRACTICE  IN  CHANCERY. 
See  Court  of  Chancery,  1,  2,  3,  6, 10> 
12,  13,14,16,25,26,27,37' 
38,  42,  43,  44,  45. 

PRINCIPAL  AND  AGENT. 

As  to  ship  masters,  and  supercargoes 
and  consignees  in  foreign  ports — 
See  shipping,  -----Ito7 

PROMISSORY  NOTE. 

1.  The  statute  3d  and  4th  Anne,  ch.  9, 
declares  that  promissory  notes  shall 
be  assignable  or  endorsable  over  in 
the  same  manner  as  inland  bills  of 
exchange  arc,  or  may  be,  according 
to  the  custom  of  merchants;  and 
power  is  by  the  same  statute  given 
to  endorsees,  to   maintain  actions 
against  the  drawers,  or  prior  en- 
dorsers of  such  notes,  in  the  same 
manner  as  in  cases  of  inland  bills 
of  exchange.     Bowie  use  of  Ladd 
vs.  Duvall,     ------175 

2.  By  this  statute,  bills  of  exchange 
and  promissory  notes   are  placed 
on  the  same  footing,  and  the  law 
applicable  to  bills,  is   in  general 
applicable  to  promissory  notes,  16. 

3.  When  a  bill  of  exchange  is  endors- 
ed in  full,  all  the  legal  interest  is 
transferred  to  the    endorsee,  and 
having  the  legal  interest,  he  alone 
is  qualified  to  maintain  an  action 
on  such  bill.    He  cannot  use  the 
name   of  the  payee,  because  the 
payee  having  transferred  his  inte- 
rest, can  have  no  competency  to 
maintain  an  action,  -    -    -    -   Ib. 

4.  So   where   it  appeared  that  the 
note  of  the  defendant,  payable  to 
B  or  order,  had  been  endorsed  as 
follows,  "I  assign  the  within  for 
value  received,  to  L;"  signed  B,  but 
which  endorsement  was  erased  just 
before  the  jury  was  sworn ;  it  was 
held  that  an  action  in  the  name  of 
B,  originally  instituted  for  the  use 
of  L,  could  not  be  maintained,  upon. 


INDEX. 


535 


the  note,  as  there  was  no  evidence 
from  which  the  jury  could  infer 
that  the  payee  and  plaintiff  was 
the  holder  of  the  note;  neither 
could  an  action  be  maintained  on 
the  money  counts,  although  there 
was  proof  of  an  express  promise 
to  pay  the  sum  demanded  in  such 
suit,  as  that  must  be  considered  as 
enuring  to  the  benefit  of  him  who 
had  a  right  to  the  note,  -  -  16. 

5.  If  a  note  duly  endorsed  in  full, 
should,  in  the    regular  course  of 
commercial  dealing,  come  back  to 
the  hands  of  a  prior  endorser,  or 
of  the  payee,  it  would  be  compe- 
tent for  such  person  as  the  holder, 
to  strike  out  the  endorsement,  and 
sue  in  his  own  name,    -    -    -    Ib. 

6.  In  an  action  against  the  maker  of 
a  note,  payable  at  the  house  of  the 
payee  and  plaintiff,  on  a  certain 
number  of  days  after  date,  no  de- 
mand of  payment  is  necessary  to  be 
averred  or  proved,  -    -    -    -    Ib. 

7.  The  endorsement  of  T,  on  the  pro- 
missory note  of  E  payable  to  A,  as 
follows:  "I  hereby  guarantee  the 
ultimate  payment  of    the    within 
note,"  is  void  for  want  of  conside- 
ration ;  and  under  the  plea  of  non 
assumpsit  to  a  declaration  founded 
upon  that  guaranty,  the  objection 
to  the  want  of  consideration  may 
be  taken.     Aldridge  8f  Higdon  vs. 
Turner, 427 

PURCHASER. 

1.  A  purchaser  for  a  valuable  consi- 
deration, without  notice,  will  not 
be  disturbed  in  equity.  PER  BLAND, 
CHAN'R.  Hagthorp  vs.  Hook,    -  270 

2.  A  purchaser  with  a  knowledge  of 
trust   becomes  himself  a  trustee, 
and  stands  in  the  place  of  the  ven- 
dor under  whom  he  claims.  IB.  76. 

3.  A  purchaser   with    notice,  from 
another  purchaser  without  notice, 
may  protect  himself  by  the  want 
of  notice  in  his  vendor,     IB.    -  Ib. 

4.  When  a  purchaser  cannot  make 
title,  but  by  a  deed  which  leads  him 
to  a  knowledge   of  the  fact;  and 
more  especially,  when  the  deed  by 
virtue  of  which  he  takes,  recites, 
or  directly  refers  to  the  instrument, 
in  which  the  trust  is  declared,  or 
from  which  it  arises,  he  shall  be 
deemed  cognizant  of  the  fact,  and 
a  purchaser  with  notice,     IB.  -  Ib. 

5.  A  purchaser  at  sheriff's  sale  is  en- 


titled to  the  benefit  of  that  officer's 
return  both  to'  the  fieri  facias  and 
venditioni  exponas ;  and  when  the 
description  of  the  subject  levied  on, 
according  to  the  schedule  returned 
under  the  first  writ  is  defective,  it 
may  be  amended  and  rendered  cer- 
tain by  the  return  of  the  sheriff's 
proceedings  under  the  second  writ. 
Clarke  vs.  Belmear,  -  -  -  -  443 

6.  A  purchaser  under  a  judicial  sale 
has  a  right  to  resort  to  the  whole 
proceedings  under  which,  his  title 
accrued,  to  ascertain  it,    -    -    Ib. 

7.  It  is  the  common  practice  where  a 
purchaser  under  a  decree  in  Chan- 
cery is  kept  out  of  possession,  by 
the  former  owner,  for  the  Chancel- 
lor to  interpose  the  authority  of 
that  court,  and  cause  the  possession 
to  be  delivered  up.  Gowan  vs.  Sum- 
wait,    511 

See  Execution,  5. 

RENT. 

See  Landlord  and  tenant,  1. 
—  Replevin.  , 

REPLEVIN. 

In  replevin  the  defendants  avowed  for 
rent  in  arrear  due  to  them  as  Exe- 
cutors of  C,  from  the  plaintiff  as 
tenant  to  their  testator,  for  the 
term  of  two  years  ending  on  the 
31st  December,  1820  ;  and  averred 
that  the  plaintiff  still  remained  in 
possession  of  the  rented  premises. 
The  plaintiff  pleaded  1st,  that  he 
did  not  possess  and  enjoy  the  prem- 
ises under  a  demise  from  C,  as  his 
tenant,  in  manner,  &c.  2d,  that  C 
did  not  demise  the  premises  to  him 
in  manner,  &c.  3d.  No  rent  in  ar- 
rear. Upon  these  pleas  issues  were 
Xoined,  and  on  their  trial  in  addi- 
I  tion  to  proof  of  the  avowry,  it  ap- 
peared that  C  died  in  March,  1820; 
that  on  the  1st  January,  1821,  the 
avowants  rented  the  same  premises 
to  the  plaintiff  for  the  year  1821, 
and  as  executors  of  C  made  their 
distress  for  the  rent  of  1819-20— 
nineteen  months  after  the'termina- 
tion  of  C's  lease,  and  while  the 
plaintiff  was  in  possession  under  the 
demise  of  the  avowants.  The  Coun- 
ty Court  instructed  the  jury,  that 
the  distress'  not  having  been  made 
within  six  months  next  after  the 
termination  of  the  demise  by  C, 
and  the  avowants  having  before  the 


536 


INDEX. 


time  of  making  their  distress,  made 
a  new  lease  to  the  plaintiff,  they 
must  find  a  verdict  for  him.  It  was 
held  upon  appeal,  that  no  question  as 
to  the  right  of  the  avowanta  as  ex- 
ecutor's of  C,  to  make  a  distress 
for  rent  falling  due  under  a  demise 
by  him,  either  before  or  after  his 
death  arose  upon  this  record  ;  that 
whether  the  distress  was  made  in 
due  time  or  not,  was  not  in  issue  by 
the  pleadings,  and  that  the  instruc- 
tion to  the  County  Court  was  erro- 
neous. Chappellear's  Ex'rs  vs.  Har- 
rison,    -  -  477 

RIPARIAN   PROPRIETOR. 
See  Ejectment,  2,  3. 

ROADS. 
See  Levy  Court. 

SET-OFF. 
See  Damages,  2,  3. 

SHERIFF. 
See  Execution,  1,  2,  3. 

SHIP  MASTER. 

See  Shipping,  1  to  7,  9,  10. 

SHIPPING. 

1.  The  owner  of  the  ship  and  cargo 
has    the   uncontrolled     power   of 
breaking  up,  or  changing  the  voy- 
age.    Pawson  vs.  Donnell,    -    -    1 

2.  The  principles  which  should  go- 
vern such  a  case  in  the  absence  of 
all  commercial  usage  on  the  sub- 
ject, and  by  which  the  effect  of  its 
action  on  the  contract  of  the  ship 
master  or  supercargo  with  the  ship 
owner  is  to  be  determined  are,  1st. 
If  by  the  exercise  of  this  privilege 
a  special  injury  is  done  to  either, 
the  ship  owner  must  bear  the  loss, 
and  make  a  reasonable  indemnity. 
2nd.  If  by  the  change  of  the  voy- 
age the  captain  or  supercargo  be 
necessarily   discharged  from    the 
performance  of  all  the  duties  for 
which   a   remuneration   has   been 
stipulated,  his  claim  to  such  remu- 
neration is  thereby   extinguished. 
3d.  If  a  part  of  the  duties  have 
been  executed,  then  such  a  propor- 
tion of  the  stipulated  compensation 
should  be  allowed,  as  appears  just, 
on  comparing  the  services  render- 
ed, with  those  which  remain  un- 
performed.   For  the   interpolated 


part  of  the  voyage,  the  usual  com- 
pensation must  be  paid.  The  par- 
ties should  be  placed,  as  nearly  as 
may  be,  in  the  same  condition  in 
which  they  would  have  stood,  had 
a  previous  contract  for  the  voyage 
as  changed  been  entered  into  be- 
tween them.  To  all  the  customa- 
ry emoluments  of  a  captain,  or  su- 
percargo, on  such  a  voyage,  are. 
those  officers  respectively  enti- 
tled,  n, 

3.  A  ship  master  who  was  also  the 
supercargo,  was  directed  to  pro- 
ceed with  his  ship  to  several  ports; 
his  compensation,  in.  addition  to 
monthly  wages,  was  to  be  a  sum 
certain,  with  the  privilege  of  bring- 
ing home  a  specific  quantity  of 
merchandize  from  one  of  such 
ports.  After  a  part  performance 
of  the  voyage,  the  ship  owner 
changed  its  direction,  and  short- 
ened it;  so  that  the  port  at  which 
the  privilege  might  have  been  ex- 
ercised was  not  visited  by  the  ship; 
before  the  termination  of  the  voy- 
age the  ship  master  died.  HELD, 
that  the  privilege  was  so  insepara- 
bly connected  with  the  vessel's  des- 
tination to  the  particular  port  at 
which  it  was  to  have  been  exercis- 
ed, that  upon  its  ceasing  to  be  one 
of  the  termini  of  the  voyage,  the 
privilege  of  necessity  expired,  and 
that  the  sum  certain  stipulated  to 
be  paid  the  captain  had  relation  to 
the  voyage  as  originally  contem- 
plated, and  was  therefore  subject  to 
abatement  in  the  discretion  of  the 
jury.  First,  for  the  alteration  of 
the  voyage,  if  they  believed,  that 
the  ship  master's  labor  and  respon- 
sibility were  thereby  lightened; 
and  secondly,  for  that  portion  of 
his  contemplated  services,  which 
were  lost  by  his  death,  -  -  Ib- 

4.  The  misconduct  of  a  captain  or 
supercargo  which  produces  neither 
injury  nor   inconvenience    to    his 
employer,  forms  no  defence  to  the 
payment  of  his  wages,     -     -     76. 

5.  The  consignees  selected  by  a  ship 
master  or  supercargo  in  a  foreign 
port,  according  to  the  usual  course 
of  trade,  and  in  good  faith,  are  so 
far  the  agents  of  the  owners  of  the 
ship  and  cargo,  that  upon  the  death 
of  the  captain  or  supercargo,  his 
representatives  are  not  responsible 
for  the  consequences  of  the  neglect 
or  misconduct  of  such  consignees, 


INDEX. 


537 


in  the  execution  of  their  agency 
after  his  death  not  imputable  to 
instructions  given  in  the  life  time 
of  such  captain  or  supercargo,  76. 

6.  A  shipment  of  merchandize  whose 
exportation  is  prohibited,  made  by  a 
supercargo  for  account  of  his  prin- 
cipal, is  at    his  own  risk,  and  if 
seized  and  condemned  at  the  place 
of  exportation,  the  supercargo  must 
bear  the  loss,  ------    /ft. 

7.  The  acceptance  by  a  ship  owner 
of  the  letters  and  invoices  sent  to 
him  by  the  consignees  of  his  ship 
in  a  foreign  port,  is  not  such  a  rati- 
fication of  the  acts  of  those  agents, 
as  would  throw  a  loss  arising  from 
the  seizure  of  merchandize  export- 
ed against  the  laws  of  the  port  of 
shipment  by  them,  for  his  account, 
upon  such  ship  owner,   -    -    -  Ib. 

8.  The  owner  of  a  ship  after  she  was 
laden  at  Baltimore,    on    the  14th 
May,  1810,  agreed  with  the  ship- 
pers of  the  cargo,  in  writing,  that 
their  goods  were  "to  be  landed  in  a 
permitted  port  on  the  continent  of 
Europe,  (meaning  that  they  were 
not  to  be  landed  at  the  Island  of 
Sylt,)  before  the  freight  should  be 
earned,  but  should  the  whole  of  the 
continent  be  shut,  the  freight,  with 
an  addition   as   arbitrators    might 
determine,  would  be  earned,  should 
the  property  be  landed  in  England, 
agreeably  to    the  custom  of    the 
country."  On  the  25th  April,  1810, 
a  charter  party  had  been  entered 
into  for  the  same  ship,  by  which 
the  owner  covenanted  to  proceed 
with  his  ship  from  Baltimore,  north 
about,  for  the  Island  of  Sylt,  thence 
to  Hamburg  or  Bremen,  if  open  to 
American  ships,  if  not,  the  cargo 
to  be  landed  at  Sylt,  if  permitted, 
and  in  case  of  refusal  there,  thence 
to    such    permitted    port   in    the 
North  Sea  or  Baltic,  as  the  master 
and  supercargo  might  direct;  and 
should  the  Baltic  be  closed  against 
the  admission  of  American  vessels, 
then  to  such  other  port  as  the  mas- 
ter and  supercargo  might  again  di- 
rect.   The  freight  was  to  be  paid 
agreebly  to  the  bills  of  lading,  pro- 
vided the  cargo  was  discharged  at  a 
port  in  the  North  Sea;  but  if  deli- 
vered at  any  port  in  the  Baltic,  an 
advance  in  the  freight  was  cove- 
nanted for;  and  should  the  Baltic  be 
shwt,a  further  advance  in  the  freight 
to  be  settled  by  arbitration.    On 

VOL.  I.— 68 


the  8th  May,  1810,"  a  bill  of  lading 
was  also  signed  for  the  plaintiff's 
goods,  which  stated  the  ship  to  be 
bound  from  Baltimore  for  Sylt,  and 
a  permitted  port  in  the  Nortk  Sea 
or  Baltic,  the  goods  to  be  delivered 
at  the    aforesaid   permitted  port, 
unto  P  of  Hamburg,  who  was  not 
the  supercargo  of  the  ship.     In  an 
action  where  the  plaintiff  claimed 
under  these  contracts,  he  offered 
testimony  to  establish  that  certain 
ports  in   Europe,  not  on  the  North 
Sea  or  Baltic,  were  open  to  .Imeri- 
can  vessels,  but  the  court  held,  that 
looking  to  the  historical  facts  and 
occurrences  of  the   time,  it  was 
manifest  that  the  voyage  was  un- 
dertaken, and  the   charter  party, 
bill  of  lading,  and  agreement  en- 
tered into,  with  a  view  to  the  then 
political  state  of  affairs  in  Europe, 
and  should   be  construed  with   a 
view  thereto — that  the  permitted 
port  on  the  continent  of  Europe,  in 
which,  the  goods  were  by  the  agree- 
ment to  be  landed,  before  freight 
could  be  earned,  was  intended  to 
be  a  permitted  port  in  the  North  Sea 
or  the  Baltic;  and  also  that  all  the 
said  instruments  must  be  construed 
in  connexion  with  each  other,  and 
the  general  terms  in  the  agreement 
of  the  14th  May,  restricted  to  the 
North  Sea  and  Baltic;  and  therefore 
rejected  the  testimony  offered,  as 
inadmissible  and  irrelevant.   Wirg- 
mari's  Miners  vs.  J\Iactierj  -    -  150 
9.  Whether  ship  owners  are  entitled 
in  equity  and  good  conscience,  to 
retain  money  received  on  account 
of  freight,  is  clearly  a  question  not 
to  be  left  to  the  jury;  but  proper 
only  to  be  decided  by  the  court, 
/under  the  circumstances  of  each 

/    case, -    -    -    Ib. 

'10.  So  where  in  an  action  of  asswnp- 
sit  brought  by  the  owner  of  mer- 
chandize shipped  in  the  defendant's 
vessel,  to  recover  a  sum  which  the 
defendant  had  received  and  retain- 
ed for  freight,  it  appeared  that  the 
shipment  was  made  under  the  char- 
ter party,  bill  of  lading,  and  agree- 
ment above  referred  to,  and  that 
the  master  was  furnished  with  in- 
structions from  the  plaintiff,  as  fol- 
lows, "on  account  of  the  i:;> -cltlcd 
state  of  affairs  on  the  continent  of 
.  Europe,  1  have  thought  proper  to 
request  my  friends  Messrs.  P.  «V 
of  Hamburg,  in  the  event  of  the 


638 


IXDEX. 


of  the,  ship  brine:  denied  en- 
trv  ;it  their  port,  to  consult  with 
\  i  t!n>  i'!:ri!i<T  destination  of 

the  ship,  and  the  disposal  of  my 
interest  on  hoard.  In  case  they 
have  no  friend  at  the  port  she  may 
proeeed  for,  you  will  please  take 
of  it,  and  advise  with  them 
•what  is  best  to  be  done  for  my  in- 
terest. On  your  arrival  off  Sylt, 
should  the  situation  of  affairs  be 
such  as  to  prevent  you  from  com- 
municating with  Messrs.  P.  fr  Co., 
in  that  ease  you  will  have  to  pro- 
ceed with  the  cargo  where  you 
judge  it  will  be  most, advantageous 
for  all  concerned,  when  I  shall  con- 
sider my  part  as  entirely  under 
your  charge,  &c."  The  ship  sailed 
on  her  voyage,  was  captured  be- 
fore her  arrival  off  Sylt,  taken  into 
a  port  in  Jfonvay,  but  ultimately 
released.  The  master,  after  the 
restoration  of  his  ship  and  cargo, 
without  consulting  with  the  con- 
signees about  the  further  destina- 
tion of  the  ship,  or  disposition  of 
the  plaintiff's  property,  although 
he  had  the  means  of  communicat- 
ing with  them,  proceeded  with  his 
ship  to  England,  there  delivered  his 
cargo,  and  received  (from  the 
agents  who  sold  the  cargo,)  as 
freigVt,the  sum  claimed  in  this  ac- 
tion. HELD,  he  was  not  entitled 
to  retain  it,  -  -----  16. 

11.  Where  by  the  municipal  regula- 
tions of  certain  ports,  a  certificate 
of  origin  was  necessary  to  the  ad- 
mission of  certain  merchandize 
there,  a  shipmaster  having  receiv- 
ed such  goods  on  board  his  ship, 
and  signed  a  bill  of  lading  for  their 
delivery  at  one  of  such  ports,  can- 
not in  the  absence  of  evidence  to 
shew  it  was  the  duty  of  the  shipper 
to  furnish  such  a  certificate,  set  up 
the  fact  of  that  document  not  being 
on  board  his  ship,  as  an  excuse  for 
not  entering  the  port  at  which  he 
had  agreed  to  land  the  property 
entrusted  to  him;  nor  as  a  justifi- 
cation for  his  delivering  it  at  ano- 
ther port,  and  thereby  earn  freight, 
Ib. 
STATE  OF  MARYLAND. 

See  Constitutional  Law. 

—  Construction,  1,  3. 

SUBSTITUTION. 
Relief  by  the  doctrine  of   substitu- 


tion, is  never  r\Mcndcd  to  a  securi- 
ty but  upon  the  assumption  that  the 
creditor's  debt  has  been,  or  is  to 
be  fully  paid — that  his  further  de- 
tention of  the  mortgaged   property 
is   against   equity    and   good    con- 
science.    Union  Bank  nf  .1/j;  i!,m<l 
vs.  Edwards,    -    -    -     -    -    -  346    ^ 

See  Court  of  Chancery,  36.  " 

SUPERCARGO. 
See  Shipping,  1  to  7. 

TAXES. 

See  Mayor  and  City  Council  of  Balti- 
more. 

TROVER. 

See  Landlord  and  Tenant. 

TRUSTEE. 

See  Bond,  2. 

TRUSTS. 

See  Court  of  Chancery,  10,  14,  16, 
22,  23,  30,  31,  32,  33. 

VENDITIONI  EXPONAS. 
See  Execution,  2. 

VOIR  DIRE. 

See  Evidence,  2. 

VOLUNTARY  PAYMENTS. 

See  Action— right  of,  4,  6,  8, 9. 

WAY— RIGHT  OF. 

1.  An"  instrument  of  the   following 
tenor — "U  hereby  authorise  R  to 
open,  and  continue  open,  a  road 
through  my  field,  beginning  at,  &c. 
as  also  to  build,  keep  in  repair,  and 
use  a  bridge  over  the  branch,  in  the 
field  on  which  the  said  road  will 
pass,  said  road  and  bridge  being  in- 
tended as  well  for  the  public  use, 
as  the  use  of  R;  and  to  continue 
until  R  and  myself  shall  agree  it 
shall  be  shut  up  or  altered;"  exe- 
cuted under  the  hand  and  seal  of 
the  owner  of  the  land,  is  a  grant  of 
an    incorporeal    hereditament,    a 
right  of  way  de  novo,  which  will 
endure  until    both    parties  agree 
upon  its  discontinuance,  and  which 
must  be  acknowledged,  and  record- 
ed according  to  our  acts  of  regis- 
tration.    Hays  vs.  Richardson,    366 

2.  A  right  of  way  in  esse  may  pass  by 
deed  of  bargain  and  sale,  duly  ac- 
knowledged and  recorded,     -    /&. 


INDEX 


539 


3.  A  transfer  of  way  de  novo  may  be 
by  grant  or  lease,  but  cannot  be 
effected  by   way  of  bargain   and 
sale,     --------    I&. 

4.  A  right  of  way  may  be  said  to  lie 
in  the  county  where  it  exists,  or  is 
exercisable,    ------    16. 

WILLS  AND  TESTAMENTS. 

Where  G  by  his  last  will  devised  cer- 
tain tracts  of  land  to  his  three  sons 
in  fee,  and  also  devised  to  his  daugh- 
ters, "the  right,  privilege  and  liber- 
ty of  residing  and  living  in  the  hous- 
es with,  and  using  and  cultivating 
with  themselves  and  their  ne- 
groes, stock,  and  of  keeping  their 
negroes,  and  all  their  other  pro- 
perty thereon,  and  with  them, 
in  common  with  my  sons,  all  my 


lands  during  the  term  that  my 
said  daughters  should  remain 
single  and  unmarried,"  it  was 
held  that  the  daughters  did  not 
take  an  estate  for  life,  or  any  other 
less  estate,  in  common  with  their 
brothers,  which  was  susceptible  of 
partition;  and  that  the  devise  to 
them  was  a  mere  charge  for  their 
benefit  upon  the  lands  of  the  testa- 
tor, and  incapable  of  alienation  to 
a  stranger.  PER  BLAND,  CHAN'R. 
Warfield  vs.  Gambrill,  -  -  -  503 
See  Manumission  of  slaves,  1. 

WITNESS. 
See  Evidence,  1,  2. 

WRIT. 

See  Execution. 


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